High Court of Judicature at Allahabad

- Exclusion and inclusion of names from the voter list A.F.R.

Democracy is a basic features of the Constitution

Executive instruction cannot override the statutory rules

COURT NO.34

CIVIL MISC. WRIT PETITION NO. 40829 OF 2005

Mangal Dev & Anr. .......... Petitioners

Versus

The State Election Commission & Ors. ............ Respondents

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble Dilip Gupta, J.

(By Hon'ble Dr. B.S. Chauhan J.)

This writ petition has been filed for quashing the order dated 27.04.2005 (Annex.8) passed by the respondent no.3 by which the names of the petitioners as well as their two sons and one daughter have been deleted from the provisional voter list prepared for the purpose of forthcoming Panchayat Raj elections.

The facts and circumstances giving rise to this case are that petitioners claim to be resident of village Bhanjanpur, Gram Panchayat Payagpur Ramgarhwa, Block Manda, Tehsil Meja, District Allahabad. There, they have a house, immovable properties and their family members reside therein. Earlier, names of the petitioners as well as their children existed in the voter list and they had exercised the right to vote in the last elections for the Parliament as well as the State Assembly. Their names appeared in the voter list prepared for Gram Panchayat election also. The elector roll was published for the purposes of holding the elections of Gram Panchayat on 01.03.2005. The names of petitioners as well as their children appeared in the voter list at Serial Nos. 962, 963, 964, 965 and 966. The election programme was notified by the Election Commission, according to which a schedule was fixed for preparing the final electoral roll. It provided that any objection for inclusion or exclusion of the name of any person in the said provisional voter list would be entertained from 1st March, 2005 to 15th March, 2005. Objections, if any, were to be disposed of from 16th March, 2005 to 1st April, 2005. According to the petitioners, no objection had been filed for exclusion of their names from the provisional voter list during the said stipulated period. Shri Surya Bali Bind, the respondent no.5, impleaded by the Court on the application moved by him, filed objections for exclusion of the names of the petitioners and their three children on 13.03.2005. No notice had ever been served upon any of the petitioners or their children. No opportunity of hearing had ever been given to them. When the petitioner no1. came to know that certain proceedings were pending for exclusion of his name, he filed an affidavit on 23.03.2005 pointing out that the objection filed for exclusion of their names was not based on correct factual position. Subsequently, petitioners did not receive any notice or any information. However, vide impugned order dated 27.04.2005, names of the petitioners and their three children have been excluded from the voter list. Hence, the present petition.

Shri Radha Kant Ojha, learned counsel for the petitioners has submitted that neither the statutory provisions provided under the U.P. Panchayat Raj Act, 1947 (hereinafter called ''the Act 1947') nor the U.P. Panchayat Raj (Registration of Electors) Rules, 1994 (hereinafter called ''the Rules 1994') have been followed. The respondent authority had no competence to entertain the application/objection for exclusion of names of the petitioners and their children after 1st April, 2005. No notice had ever been issued to the petitioners or their children. Therefore, the order impugned is without jurisdiction and is nullity.

On the contrary, Shri M.D. Singh "Shekhar", learned counsel appearing for respondent no.5, Shri Surya Bali Bind has submitted that on 10th May, 2005, certain guidelines have been issued by the State Election Commission by which the Authority concerned had the competence to entertain objections even after 01.04.2005. Petitioners had been served notices by U.P.C. (Under Postal Certificate) and also by Dasti service. Notice was sent to the house of petitioner no.1. His wife refused to accept the same, therefore, it was affixed at his house. Law does not provide for giving separate notices to the voters if they are members of the same family whose names are to be deleted. No fault can be found with the procedure adopted by the authority. Petition is liable to be dismissed.

Vide order dated 19th May, 2005, we had directed the Authority concerned, the learned Sub Divisional Magistrate, Meja to remain present before this Court along with the records and in compliance thereof, Shri Anjani Kumar Singh, Sub Divisional Magistrate, Meja is present along with all original records. We have heard him in person as well as Shri C.K. Rai, learned Standing Counsel for the State and Shri P.N. Rai, learned counsel for the State Election Commission.

The procedure in this regard is prescribed under the Act, 1947 and Rules, 1994. Section 9 of the Act, 1947 deals with the procedure for preparing the electoral roll for each territorial constituency. Sub-section (7) thereof provides that every person is entitled to be registered as a voter only in one constituency. Sub-section (8) provides that where the State Election Commission is satisfied after making certain enquiry as it may deem fit, whether on an application made to it or on its own motion, that any entry in the electoral roll should be corrected or deleted or that the name of any person entitled to get registered should be added in the electoral roll, it shall, subject to the provisions of this Act and rules and orders made thereunder, correct, delete or add the entry, as the case may be. However, the second proviso thereto provides that no deletion or correction of any entry in respect of any person affecting his interest adversely without giving him reasonable opportunity of being heard in respect of the action proposed to be taken in relation to him. Rules, 1994 provide for a detailed procedure. Rule 8 thereof provides for publication of rolls in draft giving wide publicity in the Panchayat area and the copy thereof shall be made available for inspection by the people at large. Rule 9 provides for filing claims for inclusion and exclusion of the names of any person. The objections so filed have to be registered and proper entries are to be made as required under Rule 10. However, Rule 11 reads as under:-

"11. Period for lodging claims and objections.- Every application referred to in Rule 9 or in Rule 10 shall be made within a period of seven days from date of publication of the roll in draft under Rule 8.

Rules 13 and 14 provide for procedure for entertaining objections and Rule 15 mandatorily requires for service of notice after being satisfied, prima facie, regarding the genuineness of the objections for inclusion or exclusion of the names. The notice is to be served upon the person along with a copy of the objection and notice is required to be served under sub-rule (3) personally and in default or personal service, shall be served by affixing a copy thereof at the residence. Rule 16 further provides for enquiry into claims and objections. It lays down a procedure for leading the evidence on the issue. Rule 17 provides that any person included inadvertently may be deleted from the electoral roll. Rule 19 provides for final publication of electoral roll.

In the instant case, it is admitted by Shri P.N. Rai, learned counsel appearing for the State Election Commission that the draft roll had been prepared on 01.01.2005 and was published on 01.03.2005. There is no dispute that it was published on 1st March, 2005. In view of the statutory provisions contained in Rule 11, objections could be filed only up to 8th March, 2005. We fail to understand as under what circumstances, the Election Commission could fix a date for filing objections up to 01.04.2005. No explanation could be furnished by the learned counsel appearing for the respondents as under what circumstances and by what authority of law, any objection could be entertained for inclusion or exclusion of the names in the voter list after 8th March, 2005 and even if the direction has been issued by the Election Commission in contravention of the Statutory Rules, that cannot be given effect to.

There is no scope of argument that the executive instructions can be issued in contravention of the statutory provisions. The issue as to whether executive instructions can override the statutory Rules is no-more res integra. A Constitution Bench of the Hon'ble Supreme Court, in B.N. Nagarajan & ors. Vs. State of Mysore & ors., AIR 1966 SC 1942, has observed as under:-

"It is hardly necessary to mention that if there is a statutory rule or an Act on the matter, the executive must abide by that Act or Rule and it cannot in exercise of its executive powers under Article 162 of the Constitution ignore or act contrary to that rule or the Act."

Similarly, another Constitution Bench of the Hon'ble Supreme Court in Sant Ram Sharma Vs. State of Rajasthan & Ors., [1967] INSC 168; AIR 1967 SC 1910, has observed as under:-

"It is true that the Government cannot amend or supersede statutory Rules by administrative instruction, but if the Rules are silent on any particular point, the Government can fill-up the gap and supplement the rule and issue instructions not inconsistent with the Rules already framed."

The law laid down above, has consistently been followed and it is settled proposition of law that an Authority cannot issue orders/office memorandum/executive instructions in contravention of the statutory Rules. However, instructions can be issued only to supplement the statutory rules but not to supplant it. Such instructions should be subservient to the statutory provisions. (Vide The Commissioner of Income-tax, Gujarat Vs. M/s. A. Raman & Co., [1967] INSC 153; AIR 1968 SC 49; Union of India & ors. Vs. Majji Jangammayya & ors.[1976] INSC 283; , AIR 1977 SC 757; The District Registrar, Palghat & ors. Vs. M.B. Koyyakutty & ors.[1979] INSC 46; , AIR 1979 SC 1060; Ramendra Singh & ors. Vs. Jagdish Prasad & ors., AIR 1984 SC 885; P.D. Aggarwal & ors. Vs. State of U.P. & ors., (1987) 3 SCC 622; M/s. Beopar Sahayak (P) Ltd. & Ors. Vs. Vishwa Nath & Ors., (1987) 3 SCC 693; Paluru Ramkrishnaiah & ors. Vs. Union of India & Anr., [1989] INSC 99; AIR 1990 SC 166; Comptroller & Auditor General of India & ors. Vs. Mohan Lal Mehrotra & ors., AIR 1991 SC 2288; and C. Rangaswamaiah & ors. Vs. Karnataka Lokayukta & ors., AIR 1998 SC 2496).

The Constitution Bench of the Hon'ble Supreme Court, in Naga People's Movement of Human Rights Vs. Union of India., AIR 1998 SC 431, held that the executive instructions are binding provided the same have been issued to fill up the gap between the statutory provisions and are not inconsistent with the said provisions.

Thus, it is settled law that executive instructions cannot amend or supersede the statutory rules or add something therein. The orders cannot be issued in contravention of the statutory rules for the reason that an administrative instruction is not a statutory rule nor does it have any force of law; while statutory Rules have full force of law as held by the Constitution Bench of the Hon'ble Supreme Court in State of U.P. & ors. Vs. Babu Ram Upadhya, AIR 1961 SC 751; and State of Tamil Nadu Vs. M/s. Hind Stone etc. etc.[1981] INSC 25; , AIR 1981 SC 711.

Similar view has been reiterated in Union of India & Ors. Vs. Sh. Somasundaram Viswanath & Ors., [1988] INSC 295; AIR 1988 SC 2255; Union of India & Anr. Vs. Amrik Singh & Ors., [1993] INSC 443; (1994) 1 SCC 269; Union of India & Ors. Vs. Rakesh Kumar, (2001) 4 SCC 309; Swapan Kumar Pal & Ors. Vs. Samitabhar Chakraborty & Ors., (2001) 5 SCC 581; Khet Singh Vs. Union of India, (2002) 4 SCC 380; Laxminarayan R. Bhattad & Ors. Vs. State of Maharashtra & Anr., (2003) 5 SCC 413; D.D.A. & Ors. Vs. Joginder S. Monga & Ors., (2004) 2 SCC 297; ITW Signode India Ltd. Vs. Collector of Central Excise, (2004) 3 SCC 48; and Pahwa Chemicals (P) Ltd. Vs. Commissioner of Central Excise, New Delhi, (2005) 2 SCC 720, and it has been observed that statutory rules create enforceable rights which cannot be taken away by issuing executive instructions.

In the instant case, admittedly, objections were filed on 13th April, 2005, thus it was not within the competence of the Statutory Authority to entertain the same. Therefore, all the proceedings taken by him subsequent thereto are null and void being without jurisdiction for the reason that the Election Commission could not extend the period of limitation for filing objections beyond statutory limit, i.e. seven days as provided under Rule 11 of the Rules, 1994.

Even otherwise, the original records reveal that in the proforma where the names of the persons against whom objections have been received, contains eight columns. On the first page, the names of 37 people have been mentioned. In the note thereof, certain remarks have been made. On the next page, the names of five persons, i.e. petitioners and their three children have been mentioned in a different hand writing and there had been further addition in the footnote thereof by the different ink, though in the same hand writing and it had been signed on 29th March, 2005. In column no.3, where the name of the applicant/objector is to be mentioned, the names of the petitioners and their three children have been mentioned. The name of the objector has not been mentioned anywhere. Matter has been referred to the Sub Divisional Magistrate, Meja by the Block Development Officer on 29th March, 2005 along with the documents filed by the parties. Affidavit filed by respondent no.5 Shri Surya Bali Bind has been notarized on 31st March, 2005. We fail to understand that if the papers had been furnished to the Sub Divisional Magistrate, Meja by the Block Development Officer on 29th March, 2005, then how it contained the affidavit attested and verified on 31st March, 2005. There is no doubt that the report submitted by the Block Development Officer to the Sub Divisional Magistrate, Meja is ante dated and it is a clear cut case of maneuvering with the collusion of respondent no.5 to oust the petitioner no.1 from the zone of contesting the election. The Sub Divisional Magistrate, Meja is present before us and could not furnish any explanation as to how it was possible for the Block Development Officer to forward the documents on 29th March, 2005 if the affidavit of respondent no.5 has been attested on 31st March, 2005. The order impugned dated 27.04.2005 is based on evidence which includes the affidavits filed by the parties. The findings recorded by the Statutory Authority are perverse, being based on wrong, unreliable, manipulated and manufactured evidence.

Amendment in the Constitution by adding part IX-A confers upon the local self Government a complete autonomy on the basic democratic unit unshackled from official control. Thus, exercise of any power having effect of destroying the constitutional institution besides being outrageous is dangerous to the democratic set-up of this country, therefore, an elected official cannot be permitted to be removed unceremoniously without following the procedure prescribed by law, in violation of the provisions of Article 21 of the Constitution, by the State adopting a casual approach and resorting to manipulations to achieve a ulterior purpose. The Court being the custodian of law cannot tolerate any attempt to thwart the institution.

The democratic set-up of the country has always been recognised as a basic feature of the Constitution. Like other features eg. Supremacy of the Constitution; Rule of law; Principle of separation of powers; Power of judicial review under Articles 32, 226 and 227 etc. (Vide His Holiness Keshwananda Bharti Sripada Galvaru & Ors Vs. State of Kerala, AIR 1973 SC 1461; Minerva Mills Ltd., Vs. Union of India & Ors, [1980] INSC 141; AIR 1980 SC 1789; R.C. Poundyal Vs. Union of India & Ors., AIR 1993 SC 1804; Special Reference No. 1 of 2002 In re (Gujrat Assembly Election matter) (2002) 8 SCC 237;Union of India Vs. Association for Democratic Reforms, AIR 2002 SC 2112; and People's Union for Civil Liberties Vs. Union of India & Ors., AIR 2003 SC 2363).

The right of vote, elect or contest for any post is a statutory right and such rights are subject to the limitations provided therein. (Kabool Singh Vs. Kundan Singh[1969] INSC 177; , AIR 1970 SC 340; and Thampanoor Ravi Vs. Charupara Devi, (1999) 8 SCC 74).

In view of the above, the Statute confers the right upon every eligible person to vote, elect or contest the election as per the statutory provisions. The rights so conferred is a right of an individual as an eligible elector. Therefore, a person can be deprived of right to vote, contest or elect only as per the requirement of statutory provision and not otherwise.

It has been admitted by the Authority concerned and it is proved from the record produced before us that no notice had ever been served upon the petitioner no.2 and three children of the petitioners, whose names stood deleted from the provisional voter list. To that extent, it cannot be held that the order impugned in respect of the entire family can be held to be sustainable in the eyes of law. Thus, so far as the petitioner no.2 and three children of petitioners are concerned, the order impugned is declared to be void ab initio, as the same suffers from non-compliance of the principles of natural justice. In view of the decision of the Constitution Bench judgment of the Hon'ble Apex Court in Udit Narain Singh Malpaharia Vs. Member, Board of Revenue, Bihar[1962] INSC 290; , AIR 1963 SC 786, the petitioner no.2 and three children of petitioners have a right to ignore the order passed by the Sub Divisional Magistrate, Meja, as it was passed behind their back. To that extent, the order impugned dated 27.04.2005 is declared to be unenforceable and in-executable and we direct that their names shall be treated to be existing in the provisional as well as in the final voter list.

So far as Shri Mangal Dev, petitioner no.1 is concerned, as per the election schedule, objections for inclusion or exclusion in the voter list could have been filed only by 01.04.2005. Admittedly, objections have been filed by respondent no.5 on 13.05.2005. The procedure required for the purpose has not been followed, as mentioned above. The order is based on manufactured/concocted evidence. The finding is perverse being based on no reliable evidence.

In such a fact situation, we have no option but to allow the writ petition and quash the impugned order dated 27.04.2005.

The writ petition succeeds and is allowed with the cost of Rs. 10,000/- (Rupees Ten Thousand Only) which is to be shared by the State as well as by respondent no.5 equally. The order impugned dated 27.04.2005 passed by respondent no.3 is quashed. The petitioners shall be entitled for all consequential reliefs.

26.05.2005

AHA