DELHI PRADESH JANATA DAL,HEM RAJ ARYA,DEVI DASS,RAM CHANDER YADAV,AMIR HASAN,MOHAMAD KAZIM v. CHIEF ELECTORAL OFFICER NCT OF DELHI
1994-12-20
CYRIAC JOSEPH, D.P.WADHWA
body1994
DigiLaw.ai
D. P. WADHWA ( 1 ) THERE are six petitioners, first petitioner is a political party. Other five petitioners claim to he citizens of India having right to be registered in the electoral rolls of the Legislative Assembly of the National Capital Territory of Delhi. They have filed this petition under Article 226 of the Constitution for a writ of mandamus or any other appropriate writ, direction or order to the first respondent not to delete the names of petitioners 2 to 6 and other persons from the final electoral rolls of the National Capital Territory of Delhi whose names had been included in the draft electoral rolls published with reference to the date 1 January 1994 as the qualifying date. It is stated that names of all these persons are sought to be deleted on the ground that they are not the citizens of India. It is alleged that petitioners 2 to 6 and other persons had their names already included in the draft electoral rolls of polling stations No. 87 to 108 of Matia Mahal (No. 58) Assembly Constituency of the National Capital Territory of Delhi. ( 2 ) PETITIONERS say that the Constitution (69th Amendment) Act, 1991, which came into force on 29 December 1991 provided for a Legislative Assembly in the National Capital Territory of Delhi, and that the Government of the National Capital Territory of Delhi Act, 1991, received the assent of the President of India on 2 January 1992, and that the Delhi Municipal Corporation Act (Amendment) Act, 1993 on 1 October 1993. Elections to the Legislative Assembly of the National Capital Territory of Delhi were held on 6 November 1993. The Election Commission of India, the fourth respondent, issued a direction on 22 December 1993 directing intensive special revision of the electoral rolls of the Legislative Assembly of the National Capital Territory of Delhi with reference to 1 January 1994 as the qualifying date. This was on account of the fact that complaints were received from various quarters of the deletion of correct names and inclusion of wrong names in the electoral rolls. The fourth respondent was of the view that the work of revision of electoral rolls in all the seventy assembly constituencies in the National Capital Territory of Delhi had been carried out in a gravely unsystematic, slip-shod and unacceptable manner.
The fourth respondent was of the view that the work of revision of electoral rolls in all the seventy assembly constituencies in the National Capital Territory of Delhi had been carried out in a gravely unsystematic, slip-shod and unacceptable manner. Accordingly, a direction was issued for revision of the electoral rolls as aforesaid. It is stated that in pursuance to the directions of the Election Commission, the fourth respondent, steps were taken to revise the electoral rolls and a time schedule was set as to how house to house enumeration was to he done and so also verification of citizenship status. The Chief Electoral Officer, the first respondent, by his notice dated 7/8 March 1994 had fixed the time schedule on the ground that the Election Commission of India had ordered de novo intensive revision of electoral rolls in the National Capital Territory of Delhi with reference to the date 1 January 1994 as the qualifying date. The date of publication of the electoral rolls in draft was fixed as 19 July 1994; period for filing claims and objections from 19 July 1994 to 19 August 1994; disposal of claims and objections by 19 September 1994; preparation and printing of supplementaries on 19 October 1994; and final publication of rolls on 20 October 1994. As to how the electoral rolls were to be revised, the Election Commission had issued extensive instructions for the purpose. It is stated that draft electoral rolls were published from 19 July 1994 to the last week of July 1994. As far as these electoral rolls are concerned the petitioners have no grievance. Their immediate cause for complaint and which led 10 filing of this petition has been the notice dated 20 September 1994 issued by the second respondent, the Electoral Registration Officer (ERO), of the Matia Mahal Assembly Constituency. In this notice the ERO referred to the draft electoral rolls of Assembly Constituency No. 58 (Matia Mahal) and Polling Stations 87 to 108 with reference to 1 January 1994 as the qualifying date and said that it had been brought to his notice that all persons whose names were included in the draft electoral rolls of Matia Mahal were not entitled to be so mentioned therein since it was suspected that they were not citizens of India.
Reference was made to rule 21 A of the Registration of Electors Rules, 1960, which provided for remedial action to be taken in that regard. The ERO, therefore, said that he proposed to delete the names of all such persons from the draft electoral rolls who were not the citizens of India. The notice was accordingly issued by him that all such persons whose names were included in the said electoral rolls from Polling Stations 87 to 108 were given an opportunity to show cause as to why the said action should not be taken by the ERO. Each of such persons in the list was directed to appear before him as per the schedule given in the notice in his office with necessary proof in support of his case, if any. It was mentioned in the notice that in case a person did not appear before the ERO on the date mentioned in the notice and did not produce the required proof, his name shall be deleted from the draft electoral rolls without any further reference to him. Then schedule was mentioned in the notice which is as under :- ( 3 ) PETITIONERS have challenged this action of the ERO and say that names of the persons whose names which have been included in the draft electoral rolls should not be deleted and in ease any deletion of names of the electors had already taken place, first respondent be directed to cancel that deletion and include all those names in the electoral rolls published/to be finally published with reference to 1 January 1994 as the qualifying date. ( 4 ) RULE 21 A of the Registration of Electors Rules, 1960, is salutary.
( 4 ) RULE 21 A of the Registration of Electors Rules, 1960, is salutary. To delete the name of any person from the electoral roll of a particular constituency, the ERO has to meet the requirements of that rule and before he takes remedial action, he shall - " (a) prepare a list of the names and other details of such electors; (b) exhibit on the notice board of his office a copy of the list together with a notice as to the time and place at which the question of deletion of these names from the roll will be considered, and also publish the list and the notice in such other manner as he may think fit; and (c) after considering any verbal or written objections that may be preferred, decide whether all or any of the names should be deleted from the roll: Provided that before taking any action under this rules in respect of any person on the ground that he has ceased to be, or is not, ordinarily resident in the constituency, or is otherwise not entitled to be registered in that roll, the registration officer shall make every endeavour to give him a reasonable opportunity to show cause why the action proposed should not be taken in relation to him. "in the present case before us, the notice which was issued was that a person has been wrongly included in theelectoral roll not being a citizen. It was submitted that the status of the persons like petitioners 2 to 6 as to their being citizens or not had been verified by "the enumerators in terms of the directions issued by the Election Commission of India, the fourth respondent, on 22 December 1993 requiring intensive special revision of the electoral rolls and, therefore, there was no justification for any further verification of the status of these petitioners. But then the verification by the enumerators cannot be infallible or unquestionable and very purpose of rule 21 A is to meet a contingency where a name in the electoral roll had been included by inadvertence or by any other reasons mentioned therein. ( 5 ) WHILE this petition was pending, another application was filed by the petitioners to bring on record certain further facts which had happened in the meanwhile, and also sought to add an additional relief.
( 5 ) WHILE this petition was pending, another application was filed by the petitioners to bring on record certain further facts which had happened in the meanwhile, and also sought to add an additional relief. Now the petitioners also want a writ of certiorari or any other writ, order or direction seeking to quash the notification issued by the third respondent, namely, the Election Commissioner of National Capital Territory of Delhi, on or about 7 November 1994 adopting the electoral rolls as published by the first respondent on 31 October 1994 for the purpose of the election to the Municipal Corporation of Delhi. It is also claimed that the third respondent be directed not to hold the elections of the Municipal Corporation of Delhi till such time as the first respondent is not able to finally publish the electoral rolls of all the assembly constituencies of the National Capital Territory of Delhi. A press note dated 31 October 1994 issued by the Chief Electoral Officer, Delhi, the first respondent, has also been filed showing that the electoral rolls of all the 70 assembly constituencies with reference to 1 January 1994 as the qualifying date were being published on 31 October 1994 and total number of elector s were about 66 lakhs. This press note further records as under :- "after the police authorities conducted detailed verification of all the persons included in the draft Electoral Rolls pertaining to these 253 Polling Stations falling in 34 Assembly Constituencies and police reported to the concerned Electoral Registration Officers that about 41,000 persons were found to be suspected foreign nationals or they had shifted from the concerned Assembly Constituency at the time of police verification. Such persons were issued notices under section 21a of the Registration of Electors Rules, 1960, asking them to show proof that they are Indian Nationals where nationality was suspected, and to show proof of residence where the persons had shifted. After considering the replies furnished by the concerned persons, the Electoral Registration Officers have passed orders deleting the names of about 37,000 persons. The deletions are mainly in the following constituencies:the public are informed that if any person finds that his name is not included in the Electoral Rolls or that his name has been wrongly deleted, he can file a claim in Form 6 for inclusion of name.
The deletions are mainly in the following constituencies:the public are informed that if any person finds that his name is not included in the Electoral Rolls or that his name has been wrongly deleted, he can file a claim in Form 6 for inclusion of name. ( 6 ) ON 7 November 1994 the first respondent addressed a letter to all recognised political parties on the subject "special Revision of Electoral Rolls". In this letter it was mentioned that Election Commission of India had by their letter dated 6 November 1994 ordered special revision of electoral rolls in the seven assembly constituencies under sub-section (3) of section 21 of the Representation of the Peoples Act, 1950, and these being - 45-SEEMAPURI (SC) 48-Babarpur 52-Qarawal Nagar 55-Bhalswa Jahangirpuri. 56-Adarsh Nagar 58-Matia Mahal 69-Ram Nagar (SC)UNDER sub-section (3) of section 21, Election Commission, at any time, for reasons to he recorded, direct special revision of the electoral rolls for any constituency or part of a constituency in such manner as it may think fit. A copy of the order of the Election Commission was sent along with this letter. It was mentioned that EROs of the aforesaid assembly constituencies would be publishing the electoral rolls in draft on 11 November 1994 and that the electoral rolls after special revision would be finally published on 29 December 1994. It would be, thus, seen that the Election Commission of India is seized of the matter and by letter dated 6 November 1994 to the first respondent had directed all the EROs of the seven assembly constituencies in which special revision of electoral rolls had been ordered to - " (A) to go through the finally published electoral rolls of their constituencies carefully and prepare a list of electors who are suspected to be foreign nationals, or non-citizen of India or have ceased to be, or are not ordinarily residents in the constituency or otherwise not entitled to be registered in an electoral roll, but have been included in that electoral roll owing to inadvertence or error or otherwise. (b) exhibit on the notice board of his office a copy of the list together with a notice as to the time and place at which the question of deletion of these names from the roll will be considered.
(b) exhibit on the notice board of his office a copy of the list together with a notice as to the time and place at which the question of deletion of these names from the roll will be considered. (c) also issue individual notices if possible and/or publish the list and the notice in such other amnner as he may think fit. (d) decide after going through the documentary evidence/procedure as envisaged in paras 9. 5 to 9. 11 of the "supplementary revised special instructions on revision of electoral rolls in National Capital Territory of Delhi" (forwarded to the Chief Electoral Officer, Delhi, vide Commission s letter No. 23/dl/93-94/4556-57, dated 17th June 1994) whether all or any of the names should be deleted from the roll under rule 21 A of the Registration of Electors Rules, I960. "in this letter of the Election Commission of India it was also stated that EROs may further be directed that before taking any action under rule 21a in respect of any person on the ground that he was a foreign national or that he was not an Indian citizen or that he had ceased to be 9h that he had ordinarily resident in the constituency or that he is otherwise not entitled to be registered in that roll, he shall make every endeavour to give him a reasonable opportunity to show cause why the action proposed should not be taken in relation to him. In this view of the matter, the impugned notice dated 20 September 1994 issued by the ERO, Assembly Constituency 58 (Matia Mahal) loses its significance altogether. ( 7 ) THEN a copy of Press Note issued by the first respondent has also been filed stating that the electoral rolls of 70 assembly constituencies were finally published on 31 October 1994, but, however, Election Commission of India had ordered the special revision of electoral roll under section 21 (3) of the Representation of the People Act, 1950, respect of seven assembly constituencies for the reason that the exercise of identification and elimination of foreign national from the draft electoral rolls was not satisfactory. On the basis of the direction of the Election Commission of India a time schedule was also mentions in the press note issued by the first respondent giving date of fine publication of electoral rolls as 29 December 1994.
On the basis of the direction of the Election Commission of India a time schedule was also mentions in the press note issued by the first respondent giving date of fine publication of electoral rolls as 29 December 1994. By this press note the public were informed that if any person who was entitled to be registered as an elector finds that his name was not included in the electoral roll, he could file a claim in Form 6. Similarly, it was mentioned that if any person finds that another person included in the electoral roll was not eligible to he so included, he could file an objection in Form 7, and for correction of the particulars objections in Form 8 were invited. The grievance now is that the Election Commissioner, the third respondent, issued a press note on 7 November 1994 stating that Election Commission of NCT of Delhi had decided to hold General Election to Municipal Corporation of Delhi in December 1994, and for that purpose it had adopted the electoral rolls of such assembly constituency as were comprised within the MCD area and as prepared by Election Commission of India with qualifying date as 1 January 1994 and finally published on 31 October 1994. Submission, thus, is that how could elections to the Municipal Corporation of Delhi be held on the basis of the electoral rolls claimed to be finally published on 31 October 1994when process for revision of the said rolls is still on though limited to seven assembly constituencies as ordered by the Election Commission of India under the provisions of the Representation of the People Act. Mr. Chaudhary, learned counsel for the petitioners, also submitted that first respondent was not even handing over the list of electoral rolls (finally published on 31 October 1994) to the third respondent on the ground that the said list is still under revision. He said, in these circumstances, the third respondent could not hold the elections of the Municipal Corporation of Delhi. This argument has been based on section 7e of the Delhi Municipal Corporation Act which provides for preparation and revision of electoral rolls for the purpose of holding of elections to the Corporation.
He said, in these circumstances, the third respondent could not hold the elections of the Municipal Corporation of Delhi. This argument has been based on section 7e of the Delhi Municipal Corporation Act which provides for preparation and revision of electoral rolls for the purpose of holding of elections to the Corporation. Though under this section electoral roll for each ward shall be prepared before each election under the rules if the Election Commission, which means the Election Commission of the National Capital Territory of Delhi, the third respondent, is satisfied that, instead of preparing a fresh electoral roll of a ward before the election, it would be sufficient to adopt the electoral roll of the assembly constituency for the time being in force as relates to the ward, it may, by order, for reasons to be specified therein, direct that the electoral roll of the assembly constituency for the time being in force as relates to the ward shall, subject to any rules made for the purpose, be the electoral roll of the ward for the election of the Municipal Corporation under the Delhi Municipal Corporation Act. It is stated that the Election Commission has acted under this proviso and has adopted the electoral roll of all the assembly constituencies in the National Capital Territory of Delhi for constituting the Municipal Corporation. ( 8 ) AS regards the prayers claimed in the writ petition initially filed. we see no ground to interfere. A procedure has been prescribed for inclusion or exclusion of the name in the electoral rolls, and any person aggrieved against the order of the ERO can file an appeal under rule 23 of the Registration of Electors Rules. 1960. These are quasi judicial orders and we see no cause to interfere with the same in the writ jurisdiction filed as a public interest litigation. Petitioners 2 to 6, if they are aggrieved that their names have been wrongly excluded from the electoral rolls, have certainly been given opportunity to have their names included in the electoral rolls and they cannot invoke the writ jurisdiction for their individual benefit when they have a remedy under the law. It is not possible to accept their plea that Form No. 6 from them were not even accepted by the ERO or that opportunity was not given to them to represent against exclusion of their names from the electoral rolls.
It is not possible to accept their plea that Form No. 6 from them were not even accepted by the ERO or that opportunity was not given to them to represent against exclusion of their names from the electoral rolls. They have just made bald statement without any document to support their contentions. Again, after filing of this petition at least twice opportunities have been given to file Forms No. 6. Then on the issue of the inclusion or exclusion of the names from the electoral rolls we are not satisfied if the first petitioner, a political party has a locus standi in the matter to file this petition. It was submitted that the decision of the Supreme Court in Lakshmi Charan Sen and others v. A. K. M. Hassan Uzzaman and others, AIR 1985 S. C. 1233, was not applicable after the amendment of the Representation of the People Act, 1951, by Act 1 of 1989 by which a "political party" was defined under clause (f) of section 2 of the Act meaning an association or a body of individual citizens of India registered with the Election Commission as a political party under section 29a of the Act. and Chapter IVA was inserted as to how a political party is to be registered. The Supreme Court in the aforesaid decision had held that the right to be included in the electoral rolls or to challenge the inclusion of any name in the roll is a right conferred upon individual and not upon any political party. In this judgment it was also observed that election laws did not recognise political parties except in rule 11 (c) of the Registration of Electors Rules, 1960, the Election Symbols (Reservation and Allotment) Order, 1968, and Explanation 1 to section 77 (1) of the Act of 1951. We do not think that the amendment in the law has made any difference. As noted above, orders passed under rules 20, 21 and 20a and that on appeal under rule 23 of the Registration of Electors Rules, 1960, are quasi judicial orders. A public interest litigation would not lie and it has been held that a political party has no locus standi to agitate the issue presently raised before us.
As noted above, orders passed under rules 20, 21 and 20a and that on appeal under rule 23 of the Registration of Electors Rules, 1960, are quasi judicial orders. A public interest litigation would not lie and it has been held that a political party has no locus standi to agitate the issue presently raised before us. Otherwise, we feel, writ petitions would he filed by various political parties for the sole purpose of getting political mileage and the court would be turned into a platform for political and election propaganda. Court cannot allow itself to be drawn into such a situation which is not contemplated in or conducive to our legal system. In this view of the matter we do not have to refer to other judgments cited at the bar showing as to who has the locus standi to file a petition in the public interest. Moreover, we find that during course of arguments Mr. Chaudhary said that petitioner No. 1 is itself deeply involved in the matter inasmuch as its candidate had won last election from Matia Mahal constituency. That would also show individual interest for which also we feel a public interest litigation will not lie. There cannot be any second opinion that franchise is an important right and in fact the very tenet of a democracy. A citizen cannot be deprived of this right which is his constitutional right and any such deprivation will sound the death-knell of the democracy. Mr. Chaudhary admitted that there were foreign nationals included in the electoral rolls but he said their number was in hundreds and not thousands and that provision existed in law to identify those persons. In this context he referred to the Foreigners Act, 1946; the Citizenship Act, 1955; and the Illegal Migrants (Determination by Tribunals) Act, 1983. But all these three Acts operate in different fields and do not bar the authorities under the provisions of the Representation of the People Act and the Registration of Electors Rules to verify if a person is a citizen to he included in the electoral rolls. When a political party is so much concerned with the exclusion of the names of persons who are citizens from the electoral rolls, it should be equally concerned with inclusion of persons who are foreigners.
When a political party is so much concerned with the exclusion of the names of persons who are citizens from the electoral rolls, it should be equally concerned with inclusion of persons who are foreigners. ( 9 ) THUS, the case of the petitioners would come to this: A press note was issued by the third respondent. Election Commission. NCT of Delhi, on 7 November 1994 stating that he had decided to hold general elections to the Municipal Corporation of Delhi in December 1994 and for that purpose he had adopted the electoral rolls finally published by the second respondent on 31 October 1994. According to petitioners, therefore, the electoral rolls published on 31 October 1994 are under revision pursuance to the direction of the Election Commission of India, the fourth respondent, and an electoral roll undergoing revision cannot be adopted as electoral roll for election to the Municipal Corporation of Delhi. However, the general election to the Municipal Corporation of Delhi has not so far been notified and as the things stand it is not possible to hold the elections in December this year. At me same time, the final electoral rolls are scheduled to be published after the on going process of revision, on 29 December 1994. If and when the general election is notified and if the final electoral rolls are not published by then, and if the electoral rolls published on 31 October 1994 are adopted for the purpose of election to the M. C. D. , the petitioner may have a grievance. Till then it is only a hypothetical question and this Court need not give its decision on such hypothetical question. With these observations this petition is dismissed.