Shimlo Devi vs H.P. State Election Commission & Ors

Tarlok Singh Chauhan, J

Aggrieved by the non-inclusion of her name in the Voter List, the petitioner has filed the instant petition for the grant of following substantive

reliefs:-

(i) That writ of mandamus may kindly be issued, directing the respondents to include the name of the petitioner in the Voter List of Ward No. 4 i.e.

Jhikli Pansai of Gram Panchayat Ghard, Tehsil Barmour, District Chamba, H.P., so as to enable the petitioner to cast her vote and contest the election

of Pradhan of Gram Panchayat Ghard, Tehsil Bharmour, District Chamba, H.P., since the petitioner is permanent resident of the aforesaid Gram

Panchayat and she is casting her vote for the Parliament, Vidhan Sabha and Gram Panchayat elections since long as per the earlier record.

(ii) That writ of mandamus may very kindly be issued, directing the respondents to take action as warranted under the law against the erring

officers/officials for wrongly and illegally deleting the name of the petitioner from the Voter List.

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 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.

Rule 24 of the Himachal Pradesh Panchayati Raj (Elections) Rules, 1994, reads as under:-

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.

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. Learned counsel for the

petitioner further submits that the petitioner has made representation to the authorities but the respondents have showed their inability to redress the

grievance.

These allegations of the petitioner are vehemently opposed by the learned Advocate General, who on the basis of instructions, states that the draft

Voter List in the instant case was published on 03.10.2020 and the same was kept for inspection in the Panchayat Ghar from 05.10.2020 to

14.10.2020 and after considering all the formalities like objections etc., the same was finally published on 05.11.2020. The representation of the

petitioner was not entertained as the same was made on 27.12.2020, beyond the period of limitation, as the last date for inclusion of the name in

supplementary voter list had elapsed on 23rd December, 2020.

Confronted with this, the learned counsel for the petitioner would still argue that no such exercise as stated by the learned Advocate General was

ever undertaken by the Department, but we find no merit in the said contention because admittedly 432 claims and objections under Rule 23 and 24

pertaining to the Block Bharmour were received and disposed of after the final publication on 5th November, 2020 till 24th December, 2020.

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).

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,

when the petitioner has an alternate efficacious remedy of filing an election petition under Rules.

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.