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SMT. SHYAM SUNDARI versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Smt. Shyam Sundari v. State Of U.P. & Others - WRIT - C No. 17937 of 2007 [2007] RD-AH 7845 (26 April 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

COURT NO.29

Civil Misc. Writ Petition No.17937 of  2007

Smt. Shyam Sundari

Vs.

State of U.P. & Ors.

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

Hon'ble Rajes Kumar, J.

    (By Hon.Dr. B.S. Chauhan,J)

This writ petition  has been filed by the petitioner claiming herself to be a social worker and relief sought is to decide the representation of the petitioner dated 11/3/2007 (Annex-1) for inclusion of names of the persons in the voter list  of Legislative Assembly constituency Sirathu District Kaushambi so that the public interest at large be protected.

Shri C.N. Tripathi, learned counsel for the petitioner has submitted that large number of persons have filed applications for inclusion of their names in electoral rolls/voter list; applications have been submitted in Form- 6 as required under the rules, but no action is being taken and large number persons are likely to be deprived of their valuable right to vote. Therefore petition deserves to be allowed and direction be issued to the respondents to include the names of such persons in the voter list forthwith.

On the other hand Shri C.K. Rai, learned Standing Counsel and Shri P.N. Rai appearing for the respondents have opposed the petition contending that writ petition  itself is not maintainable as right to vote is a statutory right and such objection can be taken by the individual persons. Petitioner cannot agitate such an issue on behalf of others. Even otherwise, it is too late to entertain a petition for issuing such directions as nominations for the election in the said constituency have already been made. Petition is liable to be dismissed.

We have considered the rival submissions made by the learned counsel for the parties and perused the material available on record.

The election schedule so far as the constituency involved herein, is concerned, reveals that the notification for election was issued on 05/4/2007. The last date for making the nominations was 12/4/2007 and election is to be held on 03/5/2007.

Section 23 of The Representation of the People Act, 1950 (hereinafter called the ''Act') deals with preparation of the Electoral Rolls, which reads as under:

23. Inclusion of names in electoral rolls.(1) Any person whose name is not included in the electoral roll of a constituency may apply to the electoral registration officer for the inclusion of his name in that roll.

(2) The electoral registration officer, shall, if satisfied that the applicant is entitled to be registered in the electoral roll, direct his name to be included therein:

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(3) No amendment, transposition or deletion of any entry shall be made under section 22 and no direction for the inclusion of a name in the electoral roll of a constituency shall be given under this section, after the last date for making nominations for an election in that constituency or in the Parliamentary constituency within which that constituency is comprised and before the completion of that election" (Emphasis added).

The order passed under section 23 of the Act is appeallable under section 24 of the Act.

The legislature has framed the Registration of Electors Rules, 1960 (herein after called the Rule 1960) to give effect to the provisions of the Act. The said rule provides for a complete procedure for preparing the electoral rolls. Rule 10 thereof, provides for publication of roll in draft. The draft rolls are given publicity as provided for in Rule 11.

Rule 12 provides for procedure for lodging claims and objections in respect of inclusion and exclusion of names from the electoral rolls. However, such objections can be filed within 30 days from the date of publication of the  draft rolls under Rule 10.

Rule 13 provides for different kind of forms for submitting the claims and objections and it is to be sent to the authority concerned in the manner prescribed under Rule 14.

Rule 15, further puts an obligation on the designated officer to process such claims and objections. Rule 17 provides that a claim or objection which is not submitted within the period prescribed hereinabove or in the form and manner specified therein shall be rejected.

Rule 18 provides for acceptance of claims and objections where no enquiry is required. However, in case of enquiry, notice of hearing is to be given to the claimants/objectors as required under Rule 19 either personally or by registered post or by  affixing to his residence.

Rule 20 provides for the procedure of holding an inquiry to claims and objections. It also provides for giving opportunity of hearing to the claimant/ objector. Rule 22 provides for publication of final rolls. Rule 23 provides for appeal from orders deciding claims and objections.

The present case requires to be examined in the light of the aforesaid statutory provisions.

Section 23 (3) of the Act puts a complete embargo that there can be no change in the electors roll after the date of filing of nominations. In the instant case, the last date for submitting nominations was 12/4/2007.

This issue has been dealt with by the Hon'ble Supreme Court  in Kabul Singh Vs. Kundan Singh, AIR 1970 SC 340 wherein it has been held that every person who is for the time being entered in the electoral roll of a constituency as it stood on the last date for making the nominations in the election in that constituency is entitled to vote unless he stands disqualified otherwise. The Court further held as under:

"The mandate of that provision is plain and unambiguous. It prohibits inclusion of any name in the electoral roll after the prescribed date, whether the application for inclusion was made before or after that date."

A similar view has been reiterated by the Apex Court in Nripendra Bahadur Singh Vs. Jai Ram Verma & Ors, AIR 1977 SC 1992; and Shyamdeo Pd. Singh Vs. Nawal Kishore Yadav, AIR 2000 SC 3000.

In Lakshmi Charan Sen & Ors. Vs. A. K. M. Hassan Uzaman & Ors, AIR 1985 SC 1233, the Hon'ble Supreme Court held as under:

"....Notwithstanding the fact that the roll contains these errors and they have remained to be corrected, or that the appeals in respect thereof are still pending, the Registration Officer is under an obligation to publish the roll by virtue of rule 22.

As a result of this discussion, it must follow that the fact that certain claims and objections are not finally disposed of, even assuming that they are filed in accordance with law, cannot arrest the process of election to the legislature. The election has to be held on the basis of the electoral roll which is in force on the last date for making nominations."

In P.T. Rajan Vs. T.P.M. Sahir, AIR 2003 SC 4603, the Hon'ble Supreme Court  examined the said provision and held as under:

"Sub-section (3) of Section 23 of the 1950 Act in no uncertain terms provides for statutory injunction upon the authorities to make any revision in the electoral roll after the last date fixed which indisputably having regard to the law laid down by this Court in a number of decisions would mean 3 p.m. of the date of filing the nominations.

Xxx xxxxxx xxxxxx

Sub-section (3) of Section 23 of 1950 Act is mandatory:

Sub-section (3) of Section 23 ex facie is imperative in character. It has been couched in a negative language. The word ''shall' has also been used. What is thereby, however prohibited is that after 3 p.m. of the date specified for filing of the nomination no correction by way of amendment, transposition or deletion of the entry can be made."    

In view of the above, we reach the inescapable conclusion that no inclusion or exclusion of names in the voter list is permissible after the date of making nominations.

Therefore, even if the application has been made for inclusion of the name prior to the last date of making nominations, the said application cannot be processed and names in the electoral roll could not be included after the date of making nominations.

The Court has no competence to issue a direction contrary to law. Nor the Court can direct an authority to act in contravention of the statutory provisions. (Vide  State of U.P. & Ors. Vs. Harish Chandra & Ors., AIR 1996 SC 2173; Union of India & Anr. Vs. Kirloskar Pneumatic Co. Ltd., AIR 1996 SC 3285; and Vice Chancellor, University of Allahabad & Ors. Vs. Dr. Anand Prakash Mishra & Ors., (1997) 10 SCC 264).

In State of Punjab & Ors. Vs. Renuka Singla & Ors. (1994) 1 SCC 175, dealing with a similar situation, the Hon'ble Apex Court observed as under:-

"We fail to appreciate as to how the High Court or this Court can be generous or liberal in issuing such directions which in substance amount to directing the authorities concerned to violate their own statutory rules and regulations."

Similarly, in Karnataka State Road Transport Corporation Vs. Ashrafulla Khan & Ors., AIR 2002 SC 629, the Hon'ble Apex Court has held as under:-

"The High Court under Article 226 of the Constitution is required to enforce rule of law and not pass order or direction which is contrary to what has been injected by law."

In view of the above in the instant case as the last date of making nominations was 12/4/2007, it is not permissible for this Court to issue any direction for inclusion of names in the electoral rolls even on the basis of applications (Form-6) filed prior to 12/4/2007.

Petition is devoid of merit and is accordingly dismissed.

26/4/2007

SB


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