Gajendra Singh vs State of M.P. and Others

R.S. Garg, J.

With the consent of the parties the petition is finally heard. The petitioner submits that name of the petitioner was mentioned in the voters'' list of Assembly Constituency Khurai - 36, Dist. Sagar. Name of the petitioner and his wife Smt. Kavitadevi were mentioned at S. No. 43 and 44. According to Annexure - P-3 the petitioner and his wile are residing in house No. 428. The prescribed authority prepared the voters list for elections of Gram Panchayat, Janpad Panchayat and Zila Panchayat in Form No. 1 in accordance with Rule 7 of the Madhya Pradesh Panchayat Nirvachan Niyam, 1994. The said list is on record as Annexure P-4. In the said list name of the petitioner was shown at S. No. 1132 and the name of his wife was shown at S. No. 1133. Entry No. 1132 shows the name of the occupant of house No. 428 as Gajendra Singh Dulichand, Purush - 35. After publication of the final list under rule 13 of the Nirvachan Niyam the name of the petitioner at entry No. 1196 was shown as Govind Singh Dulichand while name of his wife at S. No. 1197 was shown as Kavita Gajendra. As the name of the petitioner was wrongly mentioned as Govind Singh instead of Gajendra Singh, he made a representation to correct the mistake which was printer''s devil. The prescribed authority ordered correction of the name of the petitioner in the voters list. The Returning Officer declared the election programme for the elections of members of the Zila Panchayat Sagar on 25.4.94. The petitioner submitted his nomination form for the post of member of Zila Panchayat Sagar from Constituency No. 18 of Khurai. His nomination form was found proper at the time of scrutiny. The respondent No. 4 raised an objection stating that the petitioner was not a voter of Gram Panchayat, Banderi as his name was not shown at S. No. 1196, therefore, the nomination form of the petitioner be rejected. The Returning Officer after considering the totality of the circumstances came to the conclusion that name of the petitioner was mentioned at Sr. No. 1196, accepted the nomination and rejected the objections of the objectors.

The petitioner was declared elected by the Returning Officer and notification under rule 19 (3) was issued by Returning Officer on 9.6.94. According to the petitioner the election petitioner ought to have been filed within thirty days from the dale of notification but the petition was filed on 12.7.94 which was barred by limitation, According to the petitioner the respondent No. 2 without following the proper procedure and without even recording the evidence on perusal of the record, after hearing the counsel for the parties passed the order Annexure P-1 and P-2 and quashed the election of the petitioner on the ground that he was not a voter. It also held that the respondent No. 8 had no jurisdiction to correct the voters list after declaration of the notification under rule 27 of the Nirvanchan Niyam. Being aggrieved by the order Annexure P-1 and P-2 the petition has been filed. The respondent No. 5 and 6 in their return submitted that the officer had no jurisdiction or authority to correct the name in the voters list. It was also submitted that correction could be made by the respondent No. 9 as he had the authority to do so. According to the respondent alter finalisation of the voters list (electoral roll) the respondent No. 8 could not amend the said list. Regarding late filing of the petition it was submitted that the petition should have been filed on or before 9.7.94 but 9th being Saturday and 10th being Sunday the petition could be and was in fact filed on 11.7.94. It was also submitted that the prescribed authority docs not prepare the voters list but this is to be done by the Registration Officer and he alone has a right to make the corrections by adopting the procedure as prescribed under Rule 8 to 10. The respondent further submits that even if the clerical error can be corrected then to change of the name from Govind Singh to Gajendra Singh was not a clerical error but in fact is substitution of the name. According to the Counsel for respondent this could not be done. The Counsel further submitted that this is not a case where error is apparent on record. The petition disserves to be dismissed. As an alternative submission it was submitted that if this Court comes to the conclusion that the Election Tribunal should have made a detailed enquiry then instead of passing final orders, the matter be remitted back. I have heard the panics had have perused the records.

Rule 7 of M.P. Panchayat Nirvachan Niyam, 1994 hereinafter referred to as Election Rules, 1994 provide for the complete procedure to be adopted in election programme. Rule 7 reads as under :-

Preparation of voter list - The Commission shall subject to the provisions of section 5, cause to be prepared in form-1 a wardwise list of voters in Hindi written in Devnagri Script of each village.

According to Rule 7 the Commission subject to the provisions of section 5 has to prepare the ward-wise list of voters in form-1. Section 5 reads as under:

Registration of voters of a village - Every person who is qualified to be registered in the Assembly roll relatable to a village or whose name is entired therein and is ordinarily resident within the village shall to entitled to be registered in the list of voters of that village:

Provided that -

(a) no person shall be entitled to be registered in the list of voters for more than one village:

(b) no person shall be entitled to be registered in the list of voters if he is registered in the electoral roll relating to any other local authority.

Explanation :-

(1) The expression "ordinarily resident" shall have the meaning assigned to it in section 20 of the Representation of the People Act, 1950 (No. 43 of 1950) subject to the modification that reference to "Constituency" therein will be construed as a reference to "village."

(2) A person shall be disqualified for registration in the list of voters of a village if he is disqualified for registration in the Assembly roll.

According to section 5 persons who are qualified to be registered as voters for Assembly elections shall be entitled to be registered in the list of voters of that village. From conjoint reading of Rule 5 and 7 it is clear that all persons who are qualified registered as voters for Assembly elections are entitled to be registered in the list of voters in that village. For taking assistance the Assembly voters list is taken to be the guideline and ordinarily those lists are accepted with the amendments and modifications.

Rule 8 of the Election Rules, 1994 reads as under :-

Publication of voters''s list - (1) Each voter''s list so prepared under rule 7 shall be published by being exhibited at the office of the Gram Panchayat, if any, and on the notice board of the Tehsil Office within which the village lies and at one or two conspicuous places within the village to which the list pertains, along with the notice;

(a) inviting objections thereto and claims in respect thereof to be presented in writing within live days from the date of notice to the Registration officer; and

(b) fixing the date, time and place for the hearing of such objections and claims, if any, by the Registration Officer,

(2) From the dale of the notice referred to in Sub-rule (1). such list shall also be open for inspection free of charge, by the public for live days during office hours at the office of the Gram Panchayat if any and of the Registration Officer.

The voters list prepared under rule 7 is required to be published by its exhibition at the office of Gram Panchayat. According to Rule 8 the purpose of publication of the list is to invite objections and claims in respect of the list which are to be presented in writing within five days from date of the notice. Rule 9 of the Election Rules refers to claims and objections. Any person whose name is not entered in the voters list or is entered at an incorrect place or with incorrect particulars or any person whose name has been wrongly quoted in the list may prefer the claim or objection and submit the same to the Registration Officer. According to Rule 7 the voters list is to be prepared and according to Rule 8 the voters list is to be published. If any person is dissatisfied with the entries made in list prepared under Rule 7 then either he can lodge his claim or tile objection. It is not in dispute that in Annexure P-3. list prepared under Rule 7, name of the petitioner is rightly shown as Gajendra Dulichand. It is thus clear that the petitioner had no occasion to raise the grievance nor had a cause of action to file the claim or objection under Rule 9. It is nobody''s case that the petitioner was aggrieved by the entry made in the list Annex. P-3. If the party is satisfied by the entry made in the first list then it is not required to challenge the list. The matter would not rest hear. It is to be seen further that no objection to the list prepared under Rule 7 can be taken if the correct entries satisfied the voter that his name has been rightly included in right place with right particulars. Satisfied with the correct entries at this moment neither he would file the objection nor he would think of filing the objection. The State/ Prescribed Authority wants voters to believe that the entry rightly made would stand in favour of the voter and the same would be taken to correct for all practical purposes. The voter if he is dissatisfied then only is called upon to file the objection and not otherwise. A satisfied voter with the entry in the list cannot file any objection. If somebody who is dissatisfied with the entry in the list does not file objection or lodge his claim then on a subsequent occasion he cannot be permitted to lodge his claim. The mandate of the law is not only for voters but is against the prescribed authority also. The object under Rule 7 is a guarantee to the effect that on basis of this very list the final list shall be published.

If certain claims are lodged or objections are filed then the same would be disposed of Under Rule 10 of the Election Rules. The Registration Officer if is satisfied then the claim is to be accepted or the objections are to be upheld then he shall amend voters list with his decision. The voters list so amended subject to decision in appeal if any is final and a copy of the list duly signed by the Registration Officer shall be deposited and kept in his office and another copy be deposited in the office of the Commissioner. Any person aggrieved by the decision of the Registration Officer may prefer an appeal within five days with the said authority The Appellate Authority after hearing the parties and after making such enquiry as it shall deem fit pass such order, and, in the event of appeal being allowed direct to amend the voters list to give effect to its decision. The Rule further provides that no amendment shall be carried out in the voters list according to the decision of the Appellate Authority after the publication of the notice under Rule 27 and before the completion of the elections. It cannot be disputed that as the voters list prepared under Rule 7 and published under Rule 8 did contain the name of the petitioner as Gajendra Dulichand, he could not lodge the claim or file the objection. As he could not lodge the claim and file the objection in his case nothing was required to be done by the Registration Officer under Rule 10. The Registration Officer can assume jurisdiction under Rule 10 only if the claims are lodged or the objections are filed. In the instant case as the Registration Officer has neither claims nor objections before him. he could not assume jurisdiction nor he could decide the controversy. Once this position is settled then the question of filing of appeal docs not arise. Under Rule 10(5) a person who is aggrieved by the decision of the Registration Officer alone can file the appeal. In the instant case there was no order of which the petitioner could feel aggrieved of for filing the appeal. As such the petitioner could not file an appeal against the wrong printing of his name in the final list punished under Rule 10. According to Rule 11 every member of the public shall have right o inspect the voters list referred to in Rule 10 (4) and certified copy of the same may be issued by the Registration Officer to an applicant on payment of the prescribed fee. According to Rule 12 the voters list referred to in rule 10 (4) shall continue to be in force until revised according to Sub-Rule 2.

The Counsel for respondents submits that according to Rule 13 no correction, inclusion or exclusion in any entry in the voters list shall be made under Rules after the finalisation under Rule 10. To my mind this objection deserves to be rejected. Rule 10 (4) clearly stales that the voters list so amended subject to decision in appeal shall be final. Rule 10 (4) is to be read in light to Rule 9 and Rule 10 (3). When the claims lodged and objections are filed then the Registration Officer has to decide the claims and objections and if he is of the opinion that the voters list needs to be amended then the said list shall be amended under Rule 10(3). In the instant case the list prepared under Rule 7 so for as it relates to the present petitioner is concerned is to be taken as final list because neither any claim was lodged nor any objection was filed. As the claims were not lodged and objections were not filed Rule 10 and Rule 10 (4) are not applicable. According to the Rule 13 the correction inclusion or exclusion is prohibited after the list is finalized under Rule 10. It is admitted position that the petitioner''s name was included in the first list at S. No. 1132 as Gajendra Dulichand, he had no cause of action to lodge the claim or file the objection under Rule 9.

On finding that because of the printer''s devil or some other reason his name was misprinted as Govind Singh Dularam, the petitioner was well within his right to approach the prescribed authority for getting the clerical error corrected. It would not be out of place to stale that nobody has stated before this Court that Govind Singh Dulachand is a living being who is residing in house No. 428. Assuming for a moment as argued by the learned Counsel for the respondent that there could be somebody of this name then the respondent Election Tribunal was obliged to hold the enquiry in the matter as to whether Govind Singh Dularam was a living being or the entry at S. No. 1196 regarding resident of House No. 428 is a misprint. The learned Election Tribunal without considering this legal aspect held that the prescribed authority had no jurisdiction to correct the clerical error even. I am of the firm view that it could always be corrected by the prescribed authority. If the prescribed authority is not vested with such powers then the printer''s devil or the said misprint may lead to chaotic-condition. A person who is satisfied with the list prepared under Rule 7, one fine morning would find that without any objection against inclusion of his name he stands ousted because of some misprint. This would virtually amount to conferred of powers of the printer who otherwise does not have any power or authority to amand the list prepared under Rule 7. The list published under Rule 7 is final for all practical purposes unless amended under Rule 10 (3) and assumes finality under rule 10 (4). The jurisdiction to amend the list prepared under Rule 7 is only with the Registration Officer. Nonelse can amend the list. If somebody other than the Registration Officer amends the list then such an amendment being unauthorized, illegal without any authority or jurisdiction will have to be ignored. In the instant case the list published under Rule 7 did include the name of the petitioner, therefore, unless there were some objections filed against the said inclusion the entry could not be corrected or amended. Any correction by anybody without taking recourse to Rule 9 and 10 would be illegal, without jurisdiction and void ab-initio. The unauthorized amendment in the list would not affect the original list. The amendment will have to be ignored and the list will have to be read as it was published under Rule 7. In this case admittedly name of Gajendra Dulichand was not corrected or amended on basis of certain objections. Assuming somebody has made corrections, the same being contrary to the Rule 9 and 10 of the Election Rules will have to be ignored. In place of Govind Singh for all practical purposes Gajendra Singh is to be read... The prescribed authority did not commit any mistake.

The learned counsel for the respondent relying upon Baidyanath vs. Sitaram 1970 S.C. 314 submitted that the principles and the provisions of Representation of the People Act. 1950 shall be applicable. The Supreme Court in the said case held that Section 23 (3) takes away the power of the Electoral Registration Officer or the Chief Electoral Officer to correct the entries in the electoral rolls or to include new names in the electoral rolls of the constituency after the last date for making the nominations in that constituency and before completion of the election. The Supreme Court further observed that object of section 23 (1) and 23 (2) was to see that to the extent possible all persons qualified to be registered as voters in any particular constituency should be duly registered and to remove from the rolls and those who are not qualified to be registered. According to Supreme Court Section 23 (3) gives a mandate to the electoral registration officers not to amend, transpose or delete any entry in the electoral roll of a constituency after the last date of making nominations. The Supreme Court further held that an objection to inclusion of names of electors after last date for making nomination can be validly taken. In the said case the Supreme Court was not facing the situation that because of the printer''s devil or misprinting name of the voter was amended. The Supreme Court did not say that any unauthorized amendment by unauthorized person or unscrupulous agency would also be binding on all concern. The unscrupulous activity or the claim despite amendment by an unauthorized person certainly would not come in way of the voter who feels that he is not required to file objections against inclusion of his name. This authority does not help the petitioner. To the same effect is the judgment reported in Kabul Singh vs. Kundan Singh, (1).

The learned Counsel for the respondent relying upon Remgulam vs. Collector (2) submitted that correction of the electoral roll cannot be made. In my opinion the case instead of supporting the respondent''s contention goes against him. In the said case name of respondent No. 3 was entered at S. No. 177 at S. No. 179 name of his brother was shown. When list was finally published name of the respondent No. 3 was not included but name of his brother was included while at S. No. 179. Respondent No. 3 Govind Narain applied to the Naib Tehsildar that his name was entered at S. No. 121, but he is described as Gopal Narain. The Naib Tehsildar purporting to act under Rule 8 of M.P. Municipalities (Preparation, Revision and Publication of Electoral Rolls, Election and Selection of Councilors) Rules, 1962 allowed the application and directed that name of Govind Narain be read after deleting name of Gopal Narain. This Court held that this was not a case of clerical error. The Court further held that it was a case of substitution because in place of Gopal Narain. one Govind Narain was sought to be substituted. This Court while considering the facts and the interpretation of the clerical error relying upon a passage from the book entitled "words and phrases" by Johan B. Saunders (Vol. 1) 1969 explained clerical error'' as under :-

In the New Oxford Dictionary, one meaning attributed to the word ''clerical'' is '' of or pertaining to a clerk or penman''s exp. in ''clerical error an error made in writing anything out''. According to Webster one meaning of the word ''clerical'' is ''of or relating to a clerk or copyist'' and an example given is ''clerical error, an error made in copying or writing probably no one would deny that a clerical error may produce a significant, and even profound, effect as for example, in a case in which a writer or typist inadvertently in its the small word ''not''. But the characteristic of a electrical error is not that it is in itself trivial or unimportant, but that it arises in the mechanical process of writing or transcribing.

According to this Court a clerical error is an error made in writing anything out. This Court also held that a clerical error is of or relating to a clerk or a copyist. A clerical error is detailed to be an error made in copying or writing.

This Court was of the opinion that a clerical error may produce the significant or even profound effect. In the instant case obviously this was a clerical error. Gajendra S/o Dulichand was misprinted or miscopied as Govind Singh Dularam. In the said judgment of Ramgulam (supra) the Court was of the opinion that where a Gopal Narain S/o Ramprasad was written in the voters list it cannot be stated as Govind as is written as Gopal in the process of writing and in the mechanical process of writing or transcribing, in view of the fact that it was claimed before the Court that the two names stand for two different individuals. In this case it is nobody''s case that Govind Dulachand is neither brother of the petitioner or is the resident of House. No. 428.

The learned Counsel relying upon Lakshmi Charan Sen Vs. A. K. M. Hassan Ussaman (1) submitted that where inclusion and exclusion in electoral rolls are challenged then concerned electoral officer is a necessary party and in his absence no relief can be given. I do not know as to how this judgment of the Supreme Court helps the contention of the Counsel for the respondent. In that case the inclusion and exclusion of the names in the electoral rolls were challenged and in case in hands the petitioner has not come before this Court to challenge some inclusion or exclusion in electoral rolls. The respondent No. 5 had filed the election petition. In a matter which arises out of an election petition, if the Registration Officer was not joined as a party then the petitioner cannot be compelled to join the said Registration Officer. It is noteworthy that the petitioner is not seeking any relief against Election Officer. In fact it is the respondent No. 5 who is seeking an order from the Election Tribunal that election be quahsed. This objection is accordingly rejected.

It is necessary to inform the Election Tribunal that these election matters are not such grasses which can be weeded out in manner as they like. An election petition is to be heard and decided in the manner as provided in law. The authorities are cautioned that they have to decide the election petitions in accordance with the rules. When the election petition is filed, the opposite party and the returned candidate are required to be noticed. Their written statement must be obtained. The Election Tribunal must frame the issues it must recorded the statements and must receive the evidence and the documents and after hearing the parties give its judgment. It is neither proper nor legal for the Election Tribunal to devise its own process for deciding these election petitions. If a proper approach is made and the matters are decided in accordance with law then this Court would not be Hooded with these petitions which arise out of these election petitions. The State Govt. should consider providing for an Appellate Forum against the orders passed in these election petitions. As the orders are made final, the same cannot be challenged before any other Forum, therefore, being aggrieved by every illegality and even before the matters are finally decided the parties rush to the High Court. This Court is Hooded with such petitions. The State Govt. should reconsider the matter and if it is thought fit an Appellate Forum must be provided.

The petition for the reasons stated above is allowed. The order passed by the learned Election Tribunal is quashed. As the Election Tribunal has decided the matter without recording the evidence, it shall now decided the election petition in accordance with law. The parties shall remain present before the Election Tribunal on 11.9.95 for taking further directions from the said Tribunal.