Hafiz Mohammed vs State of Rajasthan and Others

N.K. Jain, J.—By this writ petition, the petitioner seeks to quash the order dated 24-12-1994 (Anx. 17) passed by the Collector, Bhilwara whereby he has set aside the order of the Registration Officer (Panchayat), Bhilwara dated 24-11-1994 including the petitioner''s name in the voter list of Ward No. 2, Panchayat Circle Suwana, Dist. Bhilwara.

Briefly stated the facts of the case as alleged by the petitioner are that he moved ah application for inclusion of his name in the voter list of Ward No. 2 of village Suwana Panchayat Circle Suwana as per the provisions of Rule 13(1) of the Rajasthan Panchayat Raj (Election) Rules, 1994 thereinafter referred to as the Rules of 1994) framed under the newly enacted Panchayat Raj Act, 1994 thereinafter referred to as the Act of 1994) within a period prescribed under Rule 12 (2) of the Rules of 1994. The petitioner in support of his claim produced certificate dated 31-3-1994 issued by the Administator of the Gram Panchayat certifying that the petitioner is residing at his farm house in village Suwana. The petitioner also submitted affidavits of certain persons along with Jamabandi of the agricultural land. Against the petitioner''s claim for inclusion, two persons viz. Jawaharlal and Jeevan Singh filed objections in the prescribed Form II. On 23-11-1994 Jawaharlal moved an application before the Registration Officer to withdraw the objection raised by him. On 24-11-1994 one Jagdish Paliwal on behalf of Jeevan Singh moved an application objecting the inclusion of the petitioner''s name in the voter list of Ward No. 2 of village Suwana. The Registration Officer vide order dated 25-11-1994 (Anx. 15) overruled the objections raised by the objectors arid ordered that the name of the petitioner and his wife shall be included in the voter list of Ward No. 2, Panchayat Circle Suwana. Dissatisfied with the order of the Registration Officer, an appeal was preferred by the objector Jeevan Singh before the Collector, Bhilwara. The Collector while allowing the appeal of the objector set aside the order of the Registration Officer vide his judgment dated 24-I2-1994(Anx. 17). Hence, this writ petition.

This writ petition has been preferred in the winter break on 29-12-1994 and was placed before the Senior Judge on the station for orders. Being urgent matter Hon''ble Senior Judge ordered that as it is 7.45 pm today and 1 am out tomorrow the matter be placed for disposal before the Senior Most Judge available tomorrow at principal seat. On 30-12-1994, the Senior Most Judge at the Principal seat ordered to issue notice returnable by the 2nd January, 1995 to be given dasti. The non-petitioners have been served and reply has been filed by the non-petitioner No. 1 and No. 4 respectively. The matter has come up before me on 3-1-1995 and as agreed by the learned counsel for the parties the matter is heard finally looking to the urgency in the matter.

Mr. Shishodia, learned counsel for the petitioner has contended that the objection raised by Jeevan Singh was not valid in view of Rule 13 as the objetor is not a voter of Ward No. 2 of Panchayat Circle Suwana but of Ward No. 12 and, therefore, the entire proceedings is farce and without jurisdiction. He has also contended that the Registration Officer after considering the reports of Patwari, Halka Panchayat Circle Suwana and Tehsildar, Bhilwara Tehsil as well as the documentary evidence viz. Jamabandi along with the certificate of the Administrator of the Panchayat Circle, Suwana has ordered inclusion of the petitioner''s name in the voter list but the Collector on the basis of facts which were never brought on record has acted illegally and with material irregularity in deciding the appeal in favour of the objector. He has further contended that the Collector has erred in relying on the entry of the petitioner''s name in the assembly electoral rolls of 1993 for the reason that the petitioner''s name has been included in the revised assembly electoral rolls which are being prepared on the basis of eligibility as on 1-1-1995 in Pt.-27 Village Suwana, Serial No. 348. He prays that the impugned judgment passed by the Collector may be set aside. He has placed reliance on State of Rajasthan and Others Vs. Ramdhan, The State of Rajasthan and Another Vs. Karamchand Thappar and Bros., Jai Singh v. State 1991 (1) RLR 546 and Jyoti Basu and Others Vs. Debi Ghosal and Others,

Mr. Lodha, learned counsel for the State of Raj as than, non-petitioner No. 1 has submitted that Rule 13 of the Rules of 1994 does not provide that objector should also belong to the same ward and should be on the voter list of that ward only but objection can be raised by a person whose name is appearing in the voter list. He has also submitted that the material filed by a person can be considered even if objection is withdrawn by the objector. He has urged that the documentary evidence produced by the petitioner does not establish that he is the resident of Ward No. 2, village Suwana particularly when he has not mentioned name of Mohalla and the house number. He has further submitted that the finding arrived at by the Collector should not be interfered with in the writ jursdiction.

Mrs. Bishnoi, learned coulse for the non-petitioner No. 4 has submitted ''that the non-petitioner No. 4 was fully eligiblefo raise objection and the respondent No. 2 has rightly entertained the objection. He has also submitted that Rule 21 of the Rules of 1994 does not come in the way of the non-petitioner No. 4 to prefer an appeal as his objection were considered by the Registration Officer. He has further urged that on the basis of existence of the petitioner''s name in the voter list of Ward No. 23 at S. No. 616 of Bhilwara City, the petitioner is not entitled to get his name included in the ward of Panchya Suwana in the absence of deletion of his name as provided under Rule 2(a)(ii) of the Rules of 1994. He has relied on Mathuralal and Another Vs. Mandattsingh and Others,

1 have heard learned counsel for the parties and perused the material on record as well as the relevant provisions of law.

So far as the submission that even if objection is withdrawn the authorities can consider the material suo motu is concerned, the same has not been disputed by Mr. Shishodia. But according to him, the Collector could not entertain the objection raised by Jeevan Singh in view of Rule 13 of the Rules of 1994 as the objector is not the resident of Ward No. 2, village Suwana. In this connection, sufficie it to say that neither the petitioner has raised this point before the Registration Officer nor before the Collector, therefore, it would not be appropriate to undo the same in this writ petition, not being the court of appeal. Though it has been argued that it being a question of law can be raised at any stage. Admittedly, a pure question of law can be raised at any stage but in the instant case when the authorities below have applied their mind and entertained the objection rightly or wrongly, in my view he cannot be allowed to agitate that point now before this Court particularly when the petitioner had two occasions to raise his main contention but he has failed, to avail the same, therefore, it is not open to petitioner to raise the point at this stage.

Now, I proceed to deal with other contention advanced by Mr. Shishodia, Sr. Advocate that the Collector has acted illegally and with material irregularity in deciding the appeal in favour of the objector. The petitioner''s case is that he is a resident of a farm house sityated in Ward No.2 of Village Suwana and he filed certain documents including Japiabandi of agricultural land. On the basis of Jamabandi and name of the petitioner shown in the voter list of 1995, the Registration Officer after calling the. report from the Patwari and Tehsildar held the petitioner to be original resident of Ward No. 2, Suwana. Undoubtedly, the entries of Jamabdndi is a revenue record but it tan be & proof of the fact that a person is the owner of the land and the land is so entered in his name but that cannot be taken as a sufficient proof that the person being the ordinarily resident of that place. The Collector has also considered the reports of Patwari and observed that it is clear from his report that the petitioner is residing at Bhilwara and to look after his farm house used to visit village Suwana. That apart the petitioner''s name was shown in the assembly voter lists of 1990 and 1993 at Bhilwara which was not disputed by the petitioner before the Collector. The Collector has also perused the original application moved by the petitioner under Rule 13(2) of the Rules of 1994 and found that the petitioner has not made any declaration against Column No. 3 and left that column blank. The relevant Column 3 reads as under:--

^^3&& fd esjk uke bl iapk;r lfdZy esa fdlh Hkh vU; ckMZ dh ernkrk lwph esa lfEefyr ugha fd;k x;k gS

;k

fd esjk ckMZ la[;k&&dh ernkrk dh lwph ds �e la- &&ij lfEefyr fd;k x;k gS vkSj fuosnu gS fd mls mDr lwph esa ls vioftZr dj fn;k tkos**

Looking to the conduct of the petitioner that despite his name was appearing in th voter list of Bhilwara City he did not make any declaration to this effect coupled with the facts that he was having ration card, gas connection and address of correspondence at, his residential house situated at Bhilwara where service of the notice sent in appeal was effected, he applied for inclusion of his name in the voter list without disclosing the relevant facts, the Collector has come to the conclusion that the petitioner''s application is liable to be rejected. It is settled law that one can''t be entered as a voter in more than one place i.e. to say constituency and in me matter of local body election ward. The petitioner''s name was earlier shown in the voter list of assembly constituency though he applied for inclusion of his name in the votor list of Ward No. 2 of Village Suwana but no material has been placed to show that he got his name deleted from the voter list of Bhilwara and, therefore, he cannot take advantage of the fact that his name has been included in the voter list of 1-1-1995 particularly when that list has not been published. That apart the legislature in its wisdom in the newly enacted Panchayati Raj Act has put certain condition so that the public living in rural area may solve their problems themselves by electing person residing in their village which is the main object of Panchayati Raj Act. Under the facts and circumstances of givep case, I am of the view that the Collector has not erred in reversing the order of Registration Officer in the appeal which could be filed as the Registration Officer has entertained the objection of the non-petitioner No. 4, and the finding of fact recorded by the Collector does not call for any interference in the exercise of extraordinary jurisdiction. In view of the above discussion, the petitioner cannot take any advantage out of one Ratanlal''s case whose name has been included in the voter list in the absence of any material being placed on record to show that his case is almost similar with that of Ratalal''s case. The case law cited by Mr. Shishodia, learned counsel for the petitioner is also not helpful to him in the peculiar facts and circumstances of this case. In this view of the matter, in my opinion, the impugned order passed by the Collector is just and proper and calls for no interference in this writ petition.

In the result, the writ petition has no force and the same is hereby dismissed. No order as to costs.