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Madhya Pradesh High Court · body

1999 DIGILAW 1020 (MP)

Mukesh Kumar Bajpai v. State of M. P.

1999-12-22

DIPAK MISRA

body1999
ORDER Misra, J. -- 1. Invoking the extra ordinary jurisdiction of this Court under Article 227 of the Constitution of India the petitioner has prayed for issue of writ in the nature of certiorari for quashment of the order dated 16.11.99. contained in Annexure-P-7 and further to issue a writ in the nature of mandamus commanding the respondent No. 3 to include the name of the petitioner in the voters' list and allow him to participate in the Election of Nagar Panchayat, Kanker. 2. The facts as have been unfolded arc that the petitioner was residing with his parents at village Govindpur, Tahsil Kanker, District Kanker. He shifted to Mahurbandpara Ward No.2, Kanker in April, 1999. He had informed about his new address to the Post Master, Main Post Office, Kanker. It is averred that the petitioner had sent a letter alongwith prescribed Form to the Assistant District Electoral Officer. Kanker to delete his name and the name of his wife from the voter list of Govindpur. After the notification of Nagar Panchayat was issued the petitioner and his wife submitted applications under the prescribed proforma under Rule 5(2) of M.P. Nagar palika Nirvachan Niyam, 1994 (hereinafter referred to as 'the Rules') for inc1usion of their names in village Kanker. The petitioner adduced evidence in support of his residence. The respondent No. 3 allowed the application by order dated 2.11.99 directed for inclusion of the name of the petitioner in the voters' list of Ward No.2 Nagar Panchayat, Kanker. The respondent No.4 had neither raised any objection before the respondent No.3 nor was a party before the original authority. He preferred an appeal under Rule 6 of the Rules before the respondent No.2. The respondent No.2, the Collector, Kanker, issued notice to the petitioner and after hearing the parties and perusing the documents and taking note of the fact that the petitioner's name finds place in the voters' list of village Govindpur, District Kanker directed deletion of the name of the petitioner from the voter list of Ward No.2; Kanker, Nagar Panchayat. 3. According to the writ petitioner the appellate authority has committed illegality by entertaining the appeal of the respondent No.4 inasmuch as the said respondent had not resisted the claim of the petitioner before the Assistant Electoral Officer and hence, the appeal at his instance was not maintainable. 3. According to the writ petitioner the appellate authority has committed illegality by entertaining the appeal of the respondent No.4 inasmuch as the said respondent had not resisted the claim of the petitioner before the Assistant Electoral Officer and hence, the appeal at his instance was not maintainable. It is also putforth that the respondent No. 2 has not appreciated the evidence on record in its proper perspective as a result of which there has been grave miscarriage of justice. It is also set forth that the respondent No.4 was represented by his counsel inspite of specific prohibition in the Rules for the same and that vitiates the order. 4. I have heard Mr. Sameer Seth, learned counsel for the petitioner, and Mr. V.K. Shukla, learned Government Advocate for the respondents No.1 to 3. Mr. Seth has contended that as respondent No.4 had not filed his objection before the original authority the appeal at his instance was not entertainable. He has also urged that the order passed by the appellate authority is also unsustainable on merits inasmuch as the appellate authority has only taken note of the fact that the petitioner's name finds place in two voter lists. Mr. Shukla, learned Government Advocate, has submitted that if the provision for appeal is read in proper perspective it would be crystal clear that the appeal was maintainable. He has also supported the finding recorded by the appellate authority. 5. To appreciate the rival submissions raised at the Bar it is apposite to refer to relevant Rules. Rule 4 of the Rules deals with the publication of voters' list for inviting claims and objection. Rule 5 deals with Claims and objections. Rule 6 is concerned with disposal of claims and objections. It is appropriate to reproduce Rules 5 and 6. -- 5. Claims and objections. Rule 4 of the Rules deals with the publication of voters' list for inviting claims and objection. Rule 5 deals with Claims and objections. Rule 6 is concerned with disposal of claims and objections. It is appropriate to reproduce Rules 5 and 6. -- 5. Claims and objections. -- (1) Any person, whose name is not entered in the voters list or is entered at an incorrect place or with incorrect particulars or any person whose name is entered in the list and who objects to the inclusion of his own name or the name of any other person in that list, may prefer a claim or objection by delivering to the Registration Officer an application in writing duly signed by him not later than 3 O' clock in the afternoon of the last day specified in the notice under Rule 4 and no claim or objection thereafter shall be entertained. (2) Every claim or objection shall be preferred in such form as may be prescribed by the Election Commission and shall either be presented to the Registration Officer or to such other officer as may be nominated by him in this behalf. (3) A claim or objection may be accompanied by any documents on which the claimant or objector relics. 6. Disposal of claims and objections. -- (1) The Registration Officer shall, after holding such summary inquiry into the claims or objections as he deemed fit, record his decision in writing and shall make available on demand a copy of such decision to the claimant or objector free of charge forthwith. (2) No person shall be represented by any legal practioner in any proceeding under this rule. (3) "The Registration Officer shall amend the voters' list in accordance with his decision. (4) The voters list so amended shall, subject to decision in appeal, if any, be final and a copy thereof duly authenticated by the Registration Officer shall he kept in his office and another copy deposited in the office of District Election Officer. (5) Any person aggrieved by the decision of the Registration Officer may prefer an appeal to the Appellate Authority within five days of such decision. Every appeal shall be in such form as may be prescribed by the Election Commission and presented to the appellate Authority along with a copy of the decision of the Registration Officer. (5) Any person aggrieved by the decision of the Registration Officer may prefer an appeal to the Appellate Authority within five days of such decision. Every appeal shall be in such form as may be prescribed by the Election Commission and presented to the appellate Authority along with a copy of the decision of the Registration Officer. The Appellate Authority, after giving the appellant an opportunity of hearing and after making such summary enquiry as it deems fit, shall pass suitable orders expeditiously and in the event of the appeal succeeding, direct the Registration Officer to amend the voters list to give effect to its decision. The decision of the Appellate Authority shall be final: Provided that no amendment shall be carried out in voters' list according to the decision of the appellate authority after the last date and time fixed for making nomination in the notice issued under Rule 21 and before the completion of Election." 6. On a persual of Rule 5 it is apparent that one may putforth a claim for inclusion of his name or one may object to the inclusion of his own name or name of any other person. When claims are adjudicated there is no procedure for inviting further objection to such claims or adjudicating the controversy in presence of any adversary. The matter would stand in a different footing when someone objects to the inclusion of another, as at that juncture a process of deletion is involved. In the case at hand the petitioner filed his claim for inclusion of his name in the voters' list and at that stage the question of anyone else filing objection is higher far fetched. That apart, sub-Rule (5) of Rule 6 confers a right on 'any person' aggrieved by the decision of the Registration Officer to prefer an appeal. The words "any person" arc of wide magnitude to confer right on a third party to prefer an appeal. There is no reason to give a narrow meaning to the said words so as to confine the controversy to the parties, more so, when claim of a person is decided without an adversary. Hence, I am of the considered view that the appeal at the instance of respondent No.4 was maintainable. 7. The second submission of Mr. Sameer Seth is that the respondent No.4 was represented by legal practitioner and that also vitiates the order. Hence, I am of the considered view that the appeal at the instance of respondent No.4 was maintainable. 7. The second submission of Mr. Sameer Seth is that the respondent No.4 was represented by legal practitioner and that also vitiates the order. On a scrutiny of the impugned order it transpires that the appellate authority has referred to the submission of the counsel of the appellant therein. Sub-rule (2) of Rule 6 stipulates that no person should be represented by any legal practitioner in any proceedings under the said Rule. By virtue of said stipulation the-party has no right to engage a counsel. Therefore, the authority should not have permitted the legal practitioner to argue on behalf of the respondent No.4. But in my considered view the same is in the realm of irregularity and such a procedural irregularity would not vitiate the proceeding. 8. The last limb of submission of Mr. Seth is that the finding of appellate authority is not based on proper appreciation of the material on record. In paragraph 5 of the Impugned order the appellate authority has dealt in detail about the obtaining factual matrix. The appellate authority has observed that the petitioner had not taken steps to delete his name from the voter list of Govindpur, He has observed that the name of the petitioner finds place at Sr. No. 48 House No, 7 in the voters' list of Govindput and at Sr. No. 562. Part No. 89 of the voters' list of Ward No.2 of Nagar Panchayat Kanker. On the aforesaid basis he has arrived at the conclusion that inclusion of petitioner's name in two voters' list one in village Govindpur and another in Nagar Panchayat, Kanker is illegal and accordingly directed for deletion of his name from the voter's list of Ward No.2 of Nagar Panchayat Kanker. The reasons ascribed by the appellate authority are cogent and germane to the issue and make the order impeccable. 9. In view of the aforesaid premises all the submissions raised by the learned counsel for the petitioner are devoid of substance and accordingly, the writ petition stands dismissed. However, in the peculiar facts and circumstances of the case there shall be no order as to costs.