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2006 DIGILAW 873 (PAT)

Anju Devi v. State Of Bihar

2006-09-20

S.N.HUSSAIN

body2006
Judgment 1. Heard learned Counsel for the petitioners, learned Counsel for the State and learned Counsel for the Bihar State Election Commission. 2. In this writ petition the petitioners seek writ of mandamus directing the respondents to treat the names of the petitioners in the voter list of Ward No. 10, Kanhauli Bishundutta Gram Panchayat, as according to the petitioners it existed on the day of nomination for the posts of Sarpanch and Member of the Panchayat Samiti in the General Elections of 2006 and in consequence thereof their respective candidature for different posts were accepted and also for restoring the previous position allowing the petitioners to contest the aforesaid elections. 3. Learned Counsel for the petitioners submits that, when the notification of Election of 2006 was published the petitioners name existed in the electoral roll, according to which they filed their nominations on the appointed date i.e. on 17.3.2006 which was accepted and thereafter symbol was also granted to the petitioners. He also avers that subsequently when the petitioners learnt that the authorities concerned were trying to strike off their names from the electoral roll illegally, they filed a representation before the Election Commission on 15.5.2006 but no step in that regard was taken and on the next day i.e. on 16.5.2006 the petitioners received a notice from the Block Development Officer to show as to why their names should not be struck off and accordingly the petitioners appeared before the said authority on 18.5.2006 and filed representation, where after their names were struck off from the electoral role on 21.5.2006, against which the petitioners filed representation before the Election Commission on 24.5.2006 and also filed the instant writ petition on the same date. Learned Counsel for the petitioners submits that the names of the petitioners have been struck off and their candidatures have been cancelled only on the ground that their respective residences fall within the urban area but the said allegation was absolutely false as the petitioners area was declared as rural area in 1995 Gazette, where after no Gazette was published, nor any process has been adopted for declaring the said area as urban area and in any view of the matter the Block Development Officer was not competent to strike off their names from the electoral roll 4. Learned Counsel for the petitioners relies upon a decision of this Court dated 05.9.2005 passed in CWJC No. 3612 of 2002 in which an interim order was passed but no final order has been passed in the said case. He also relies upon a Division Bench decision of the Hon ble Apex Court in the case of Shyamdeo Pd. Singh V/s. Nawal Kishore Yadav reported in (2000) 8 Supreme Court Cases 46 in which reliance was placed on a decision of another Division Bench decision of the Hon ble Supreme Court in case of Kunwar Nripendra Bahadur Singh V/s. Jai Ram Verma reported in - which followed the decision of a Constitution Bench of the Hon ble Apex Court in case of Hari Prasad Mulshanker Trivedi V/s. V.B. Raju reported in - and held as follows: The finality of the electoral roll cannot be challenged in an election petition even if certain irregularities had taken place in the preparation of the electoral roll or if subsequent disqualification had taken place and the electoral roll had on that score not been corrected before the last hour of making nominations. After that dead line the electoral roll of a constituency cannot be interfered with and no one can go behind the entries except for the purpose of considering disqualification u/s. 16 of the 1950 Act. In the case in question the persons whose names were recorded in the electoral roll and participated in the voting were not disqualified u/s. 16 of the 1950 Act. That being the position it would have been wrong on the part of the Presiding Officer not to allow the voters whose names were recorded in the electoral roll of the constituency to participate in the voting, even though their names could have been earlier at the appropriate time legitimately excluded from the electors roll. These voters are electors with in the meaning of sec. 2(1)(e) of the 1951 Act and were entitled to vote u/s. 62 of the 1951 Act. In a democracy and for that matter in an election, perennial vigilance should be the watchword for all. If, therefore, notwithstanding the provisions of the law, appropriate action was not taken at the appropriate time, the provisions of the election law which have got to be construed strictly, must work with indifference to consequences, immediate or mediate. 5. In a democracy and for that matter in an election, perennial vigilance should be the watchword for all. If, therefore, notwithstanding the provisions of the law, appropriate action was not taken at the appropriate time, the provisions of the election law which have got to be construed strictly, must work with indifference to consequences, immediate or mediate. 5. The aforesaid Division Bench of the Hon ble Apex Court also considered the matter and finally came to the following conclusion: 26. To sum up we are of the opinion that inclusion of person or persons in the electoral roll by an authority empowered in law to prepare the electoral rolls, though they were not qualified to be so enrolled, cannot be a ground for setting aside an election of a returned candidate under Sub-clause (iii) or (iv) of Clause (d) of Sub-sec. (1) of sec. 100 of the Representation of the People Act, 1951. A person enrolled in the electoral list by an authority empowered by law to prepare an electoral roll or to include a name therein is entitled to cast a vote unless disqualified under Sub-sec. s (2) to (5) of sec. 62 of the Representation of the People Act, 1951. A person enrolled in the electoral roll cannot be excluded from exercising his right to cast vote on the ground that he did not satisfy the eligibility requirement as laid down in sec. 19 or 27(5) of the Representation of the People Act, 1950. 6. Learned Counsel for the petitioners also avers that in view of the aforesaid Constitution Bench decision of the Hon ble Apex Court the petitioners cannot challenge the electoral roll in an election petition. He further submits that the Division Bench decision of Hon ble Apex Court has also considered the matter and hence in view of the said decision the petitioners claim be considered in the instant case. 7. Learned Counsel for the respondent-Commission opposes the contentions of the learned Counsel for the petitioners and submits that the elections for the posts concerned were held and results were declared and the elected candidates are functioning and after declaration of results the election proceeding has come to an end. 8. 7. Learned Counsel for the respondent-Commission opposes the contentions of the learned Counsel for the petitioners and submits that the elections for the posts concerned were held and results were declared and the elected candidates are functioning and after declaration of results the election proceeding has come to an end. 8. It is thus clear that one of the principles underlying the plenary bar on Judicial proceedings in election matte s created by Art. 329(b) is the pre-emptory urgency of prompt engineering of the whole" election process without intermediate interruptions by way of legal proceedings challenging the steps and stages in between the commencement and the conclusion as derided in case of Mohinder Singh Gill V/s. Chief Election Commissioner reported in The same principle underlies the provisions of this Act. 9. From the decision of the Hon ble Apex Court in case of Shyamdeo Prasad Singh (Supra) it is quite apparent that the said case as well as the other cases mentioned therein were with respect to the orders of the Designated Election Judge and hence the appellants of those cases had firstly filed election petitions before the statutory authorities and only thereafter moved the High Court or the Hon ble Apex Court. But here in this case no such petition has been filed by the petitioners. 10. Furthermore, from the aforesaid decisions of the Hon ble Apex Court it is quite apparent that after the results have been declared the Courts should not interfere into the matter except in proceeding specifically and strictly prescribed under the provisions of the relevant statute. In the light of the aforesaid decisions and the facts of the case the entire argument raised on behalf of the petitioners appears to be absolutely frivolous and misconceived and accordingly this writ petition is dismissed.