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Madhya Pradesh High Court · body

2008 DIGILAW 1002 (MP)

MOHAN MAHAVAR v. UNION OF INDIA

2008-08-11

A.K.PATNAIK, SANJAY YADAV

body2008
Judgment ( 1. ) THE petitioners in these two writ petitions are all residents of different wards of the Jabalpur Cantonment and they have filed these writ petitions as public Interest Litigations challenging the electoral rolls notified on 3-1-2008 for elections to the Jabalpur Cantonment Board. ( 2. ) THE relevant facts briefly are that the Cantonments Act, 1924 was replaced by a new Cantonments Act, 2006 (for short the 2006 Act) by parliament. The 2006 Act was brought into force by notification dated 18-12-2006. Under Section 31 of the 2006 Act, the Central Government made and notified on 21-8-2007 the Cantonment Electoral Rules, 2007 (for short the 2007 Rules ). Thereafter, the preliminary electoral rolls of the Jabalpur cantonment were published on 20-11-2007 inviting claims and objections and the final electoral rolls of the Jabalpur Cantonment were published on 3-1-2008. Aggrieved, the petitioners have filed these two writ petitions under Art. 226 of the Constitution. ( 3. ) IN W. P. No. 1406 of 2008, the petitioners have prayed for writ or order or direction to disqualify the Defence Personnel included in the electoral rolls of all the eight Wards of the Jabalpur Cantonment as electors. Mr. Ahadulla Usmani, learned Counsel for the petitioners submitted that the inclusion of the Defence Personnel in the final electoral rolls of the Jabalpur cantonment is contrary to the provisions of the 2006 Act. He submitted that a reading of the Statement of Objects and Reasons appended to the Bill which finally became the 2006 Act and a reading of the Preamble of the 2006 Act would show that greater democratization by enhanced representation of the elected members and parity between the official and elected members of the cantonment Board were the main objects of the 2006 Act. He submitted that in section 12 (1) of the 2006 Act, the word population means only civilian population because Section 12 (2) states that the population in Section 12 (1)has to be calculated according to the latest official census and the official census only shows the civil population without the defence personnel of a Cantonment. He argued that since Section 12 (1) refers to only civilian population, the defence personnel cannot be the electors for the purpose of election to the cantonment Board and cannot be included in the electoral rolls. He argued that since Section 12 (1) refers to only civilian population, the defence personnel cannot be the electors for the purpose of election to the cantonment Board and cannot be included in the electoral rolls. He also submitted that Section 12 (3) of the 2006 Act provides that Category-I cantonments, such as Jabalpur, will have eight official members and eight elected members and since defence personnel were to be represented by official members, they were not entitled to elect their representatives. He next submitted that Section 28 (1) of the 2006 Act provides that the person who has resided in the Cantonment for a period of not less than six months immediately preceding the qualifying date shall be entitled to be enrolled as an elector and the Explanation to Section 28 (1) of the 2006 Act makes it clear that residence in a place or area comprising the Cantonment is deemed to be residence in the cantonment for the purpose of Section 28 (1) of the 2006 Act. He submitted that Section 2 (zt) of the 2006 Act would show that resident in relation to a cantonment means a person who maintains therein a house or a portion of a house. He submitted that the Defence Personnel who do not maintain house or a portion of the house in the Cantonment area and live in buildings provided by the Government cannot, therefore, be said to be residing in the Cantonment area and, therefore, do not qualify as electors within the meaning of Section 28 of the 2006 Act. ( 4. ) THE petitioners in W. P. No. 2596 of 2008 have prayed for a writ/direction/order quashing the notification dated 3-1-2008 notifying the final electoral rolls and for a writ/direction/order to the Cantonment Board to review the electoral rolls in accordance with Section 28 of the:2006 Act and the 2007 rules. Mr. Pankaj Dubey, learned Counsel for the petitioners submitted that section 28 (1) of the 2006 Act is clear that only a person who has resided in the cantonment for a period not less than six months immediately preceding the qualifying date, shall be entitled to be enrolled as an elector. He submitted that in Mst. Jagir Kaur and another Vs. Pankaj Dubey, learned Counsel for the petitioners submitted that section 28 (1) of the 2006 Act is clear that only a person who has resided in the cantonment for a period not less than six months immediately preceding the qualifying date, shall be entitled to be enrolled as an elector. He submitted that in Mst. Jagir Kaur and another Vs. Jaswant Singh, AIR 1963 SC 1521 , the supreme Court has held that the word reside means something more than a flying a visit or a casual stay in a particular place and there should be intention to stay for a period, the length of the period depending upon the circumstances of each case. He also cited Union of India and others Vs. Dudh Nath Prasad, (2000)2 SCC 20 , in which the Supreme Court, relying on Mst. Jagir Kaur and another (supra), has held that a person "ordinarily residing" at a particular place will mean that such person has an intention to stay at that place for a considerable long time and does not just make a flying visit to the place. He submitted that the defence Personnel only come temporarily to Jabalpur during their posting and do not reside in the Jabalpur Cantonment. He next submitted that Rule 12 of the 2007 Rules provides that copies of electoral rolls prepared under Rule 10 shall be displayed at the notice-board of the office of the Cantonment Board, but annexure R-7 annexed to the reply filed on behalf of the respondent Nos. 2,3 and 5 would show that the preliminary electoral roll for the Jabalpur cantonment was kept only for inspection at the office of the Cantonment Board daily between 11 a. m. and 4 p. m. from 20-11-2007 to 9-12-2007. He submitted that since the preliminary electoral rolls were not displayed in the notice-board of the office of the Cantonment Board, claims and objections to the electoral roll could not be presented by different persons and the publication of the final electoral roll is in violation of the 2007 Rules. ( 5. ) MRS. He submitted that since the preliminary electoral rolls were not displayed in the notice-board of the office of the Cantonment Board, claims and objections to the electoral roll could not be presented by different persons and the publication of the final electoral roll is in violation of the 2007 Rules. ( 5. ) MRS. Indira Nair, learned Senior Counsel appearing for Jabalpur cantonment Board, on the other hand, relying on the reply filed on behalf of the jabalpur Cantonment Board in W. P. No. 2596 of 2008, submitted that Annexure r-7 and Annexure R-8 to the reply would show that in accordance with Rule 12 of the 2007 Rules, copies of the preliminary electoral rolls of different wards of the Cantonment were displayed at the notice-board of the office of the cantonment Board and at the same time, notice in Form II as prescribed by the 2007 Rules was put on the notice-board of the office of the Cantonment Board saying that the preliminary electoral rolls were placed for inspection at the notice-board and claims and objections in the prescribed forms may be presented to the Chief Executive Officer at any time during the office hours or sent by post so as to reach him within 20 days of the date of issue of notice, i. e. , on or before 9-12-2007. She further submitted relying on reply to Para 5. 9 of W. P. No. 2596 of 2008 that in response to the notice, 3550 objections regarding inclusion of names were presented to the Chief Executive Officer of the cantonment Board and hence the allegation of the petitioners that the preliminary electoral rolls were not displayed in the notice-board so as to enable persons to file their objections and claims is not correct. ( 6. ) REGARDING inclusion of defence personnel in the final electoral rolls, Mrs. Nair submitted that Section 28 (1) of the 2006 Act is clear that every person who has resided in the Cantonment for a period not less than six months immediately preceding the qualifying date shall be entitled to be enrolled as an elector if he is not otherwise disqualified. Nair submitted that Section 28 (1) of the 2006 Act is clear that every person who has resided in the Cantonment for a period not less than six months immediately preceding the qualifying date shall be entitled to be enrolled as an elector if he is not otherwise disqualified. She submitted that the word used in section 28 (1) is resided and not resident and, therefore, the definition of resident in Section 2 (zt) of the 2006 Act is not relevant for deciding who is or who is not an elector to be included in the electoral rolls of the Cantonment in accordance with Section 28 (1) of the 2006 Act. She submitted that the word resident has been used in Sections 13 (7), 65 (1) (iv), 348 (2) and 348 (31) and the definition in Section 2 (zt) is relevant for interpreting these provisions of the 2006 Act. She further submitted that Section 12 (1) of the 2006 Act divides cantonments into four categories depending upon the total population of the cantonment and has no relevance to the question who and who is not entitled to be enrolled as an elector in the electoral roll. She submitted that similarly section 12 (3) of the 2006 Act which deals with the composition of the members in different categories of Cantonments has also no relevance to the question who or who is not an elector for being included in the electoral roll of the cantonment. ( 7. ) MRS. Nair submitted that in Gwalior Rayons Silk Manufacturing (Wvg ). Co. Ltd. Vs. Custodian of Vested Forests, Balaghat, AIR 1990 SC 1747 , the supreme Court has held that in finding out the Legislative intention, Judges not only listen to the voice of the Legislature but also listen attentively to what the legislature docs not say. She submitted that since the Legislature has not said in section 28 that only persons maintaining houses in the Cantonment will be qualified to be electors, the Court cannot hold that only persons who maintain houses in the Cantonment area will be entitled to be included in the electoral rolls as electors for elections to the Cantonment Board. She cited State of jharkhand and another Vs. She cited State of jharkhand and another Vs. Govind Singh, AIR 2005 SC 294 , for the proposition that when the words of the statutes are clear, plain or unambiguous and they are reasonably susceptible to only one meaning, the Courts are bound to give effect to that meaning irrespective of consequences because the intention of the legislature is primarily to be gathered from the language used by the legislature. Mr. Dharmendra Sharma, Assistant Solicitor General, appearing for the Union of India adopted the aforesaid arguments of Mrs. Nair. ( 8. ) MR. Shashank Shekhar, learned Counsel appearing for the interveners submitted that every person who has resided in the Cantonment area for six months is qualified to be included in the electoral roll as would be clear from Section 28 (1) of the 2006 Act and Rule 9 of the 2007 Rules. He submitted that Rule 11 (2) of the 2007 Rules also provides that the Chief executive Officer shall ascertain the names of members of the armed forces and other Defence personnel residing in the unit lines or other buildings, who are eligible for registration in the electoral roll of the Cantonment from the Officer commanding the Station or the Officer Commanding the Unit as he deems necessary. He submitted that this rule would show that the names of the members of the armed forces and the other Defence Personnel residing in the unit lines or other buildings in the Cantonment area will also have to be entered in the electoral roll. He submitted that the petitioners have not challenged the vires of Rule 11 (2) of the 2007 Rules and hence cannot raise an objection that names of the members of the armed forces and other Defence Personnel cannot be entered in the electoral roll of the Jabalpur Cantonment. He cited the decision of the Privy Council in Sarat Chandra Basu Vs. Bijoy Chand Mahatab maharajadhiraj Bahadur of Burdwan, AIR 1937 PC 46 and the decision of the bombay High Court in Hilla Maneksha Panthaky Vs. Maneksha Darasha pathaky, AIR 1941 Bombay 330, in support of his contention that even persons residing in the Cantonment temporarily for a period of six months before the qualifying date are entitled to be registered as electors in the electoral rolls. ( 9. Maneksha Darasha pathaky, AIR 1941 Bombay 330, in support of his contention that even persons residing in the Cantonment temporarily for a period of six months before the qualifying date are entitled to be registered as electors in the electoral rolls. ( 9. ) THE first question that we have to decide in these two writ petitions is whether the names of the members of the armed forces and the Defence personnel residing in the unit lines or other buildings within the Jabalpur cantonment are to be entered in the electoral roll of the Jabalpur Cantonment. In Bhaiji Vs. Sub-Divisional Officer, Thandla and others, (2003) 1 SCC692, the supreme Court has observed that the weight of Judicial Authority lean in favour of the view that the Statement of Objects and Reasons appended the Bill cannot be utilised for the purpose of restricting and controlling the plain meaning of the language employed by the Legislature in drafting a statute and if the words of a statute are plain and unambiguous, effect must be given to them. In venkataswamy Naidu and another Vs. Narasram Naraindas, AIR 1966 SC 361 , the Supreme Court has also held that resort to the Preamble of an Act would not be justified if the words used in the Statute are clear and unambiguous. Hence, we have to first refer to the provisions of the 2006 Act to find out who are qualified to be electors in a Cantonment and are accordingly entitled to be entered in the electoral rolls of the Cantonment and if the provisions of the 2006 act are clear and unambiguous, we cannot resort to with the Statement of objects and Reasons appended to the Bill or the Preamble of the 2006 Act. ( 10. ) IN Jagir Kaur and another Vs. Jaswant Singh (supra), the word "reside" used in Section 488 of the Code of Criminal Procedure, 1898 came to be considered and the Supreme Court held:- "in the Oxford Dictionary, it is defined as : "dwell permanently or for a considerable time; to have ones settled or usual abode; to live in or at a particular place". The said meaning, therefore, takes in both a permanent dwelling as well as a temporary living in a place. It is, therefore, capable of different meanings, including domicile in the strictest and the most technical sense and a temporary residence. The said meaning, therefore, takes in both a permanent dwelling as well as a temporary living in a place. It is, therefore, capable of different meanings, including domicile in the strictest and the most technical sense and a temporary residence. Whichever meaning is given to it, one thing is obvious and it is that it does not include a casual stay in, or a flying visit to a particular place. In short, the meaning of the word would, in the ultimate analysis, depend upon the context and the purpose of a particular statute. " It is thus clear that the word "reside" includes not only permanent residence but also temporary residence but does not include a flying visit to or a casual stay in a particular place and in the ultimate analysis the meaning of the word "reside" will depend upon the context and the purpose of a particular statue in which the word is used. This decision has been followed by the Supreme court in Union of India and others Vs. Dudh Nath Prasad (supra ). Thus, the word "resided" has to be interpreted in the context of the 2006 Act to find out whether it means only permanent residence or also temporary residence. ( 11. ) SECTIONS 2 (zt), 12 (1), 12 (2), 12 (3) and 28 of the 2006 Act on which reliance has been placed by the learned Counsel for the parties are extracted herein below :- "2. (zt) "resident", in relation to a Cantonment, means a person who maintains therein a house or a portion of a house which is at all times available for occupation by himself or his family even though he may himself reside elsewhere, provided that he has not abandoned all intention of again occupying such house either by himself or his family. " "12. Constitution of Cantonment Boards. (1) Cantonments shall be divided into four categories, namely:- (1) Category I Cantonments, in which the population exceeds fifty thousand; (ii) Category II Cantonments, in which the population exceeds ten thousand, but does not exceed fifty thousand; (iii) Category III Cantonments, in which the population exceeds two thousand five hundred, but does not exceed ten thousand; and (iv) Category IV Cantonments, in which the population does not exceed two thousand five hundred. (2) For the purposes of sub-section (1), the population shall be calculated in accordance with the latest official census, or, if the central Government, by general or special order, so directs, in accordance with a special census taken for the purpose. (3) In Category I Cantonments, the Board shall consist of the following members, namely:- (a) the Officer commanding the station as ex officio or, if the central Government so directs in respect of any cantonment, such other Military Officer as may be nominated in his place by the General Officer commanding-in-Chief, the Command; (b) the District Magistrate or an Executive Magistrate not below the rank of Additional District Magistrate nominated by him; (c) the Chief Executive Officer; (d) the Health Officer ex officio; (e) the Executive Engineer ex officio; (f) three military officers nominated by name by the Officer commanding the station by order in writing; (g) eight members elected under,this Act. " "28. Qualification of electors.- (1) Every person who, on such date as may be fixed by the Central Government in this behalf by notification in the Official Gazette hereinafter in this section referred to as "the qualifying date", is not less than eighteen years of age and who has resided in the Cantonment for a period of not less than six months immediately preceding the qualifying date shall, if not otherwise disqualified, be entitled to be enrolled as an elector. Explanation:- When any place is declared a Cantonment for the first time, or when any local area is first included in a Cantonment, residence in the place or area comprising the Cantonment on the aforesaid date shall be deemed to be residence in the Cantonment for the purposes of this sub-section. Explanation:- When any place is declared a Cantonment for the first time, or when any local area is first included in a Cantonment, residence in the place or area comprising the Cantonment on the aforesaid date shall be deemed to be residence in the Cantonment for the purposes of this sub-section. (2) A person notwithstanding that he is otherwise qualified, shall not be entitled to be enrolled as an elector if he on the qualifying date- (i) is not a citizen of India, or (ii) has been adjudged by a Competent Court to be of unsound mind, or (iii) is an undischarged insolvent, or (iv) has been sentenced by a Criminal Court to imprisonment for a term exceeding two years for an offence which is declared by the Central Government to be such as to unfit him to become an elector or has been sentenced by a criminal Court for any offence under Chapter IX-A of the indian Penal Code (45 of 1860): provided that any disqualification incurred by a person under clause (iv) shall terminate on the lapse of three years from the expiry of the sentence or order. (3) If any person having been enrolled as an elector in any electoral roll subsequently becomes subject to any of the disqualifications referred to in sub-section (2), his name shall be removed from the electoral roll unless, in the case referred to in clause (iv), the disqualification is removed by the Central Government. " It will be clear from a plain reading of Section 28 (1) of the 2006 Act quoted above that every person who is not less than eighteen years of age and who has resided in the Cantonment for a period of not less than six months immediately preceding the qualifying date shall, if not otherwise disqualified is entitled to be enrolled as an elector. To qualify as an elector, therefore, a person has only to temporarily reside in the Cantonment for a minimum period of six months. ( 12. ) SECTION 2 (zt) of the 2006 Act, however, defines "resident" in relation to a Cantonment to mean a person who maintains therein a house or a portion of a house. The word "resident" has a different meaning that the word "reside". ( 12. ) SECTION 2 (zt) of the 2006 Act, however, defines "resident" in relation to a Cantonment to mean a person who maintains therein a house or a portion of a house. The word "resident" has a different meaning that the word "reside". A person is a resident of a particular place only if he maintains a house or a portion of a house at that particular place and not otherwise, but a person can physically reside in a particular place without maintaining a house or a portion of a house in that particular place. Hence for interpreting Section 28 (1)of the 2006 Act which uses the word "resided" and. does not use the word "resident", the definition of "resident" in Section 2 (zt) of the 2006 Act is not relevant. As pointed out by Mrs. Nair, the word "resident" finds place in sections 12 (7), 65 (1), 348 (2) and 348 (31) of the 2006 Act and for this reason section 2 (zt) of the 2006 Act defines the word "resident". ( 13. ) SUB-SECTION (1) of Section 12 of the 2006 Act on which Mr. Usmani relied upon divides Cantonments into four categories on the basis of population of the Cantonments and sub-section (2) of Section 12 states that for the purpose of sub-section (1) the population can be calculated according to the latest census. It may be true that the official census only refers to the civilian population of a Cantonment and does not include the Defence Personnel or armed forces in the Cantonment, but sub-sections (1) and (2) of Section 12 cannot in any way control Section 28 (1) of the 2006 Act which clearly states that every person who has resided in the Cantonment for a period of not less than six months immediately preceding the qualifying date shall be entitled to be enrolled as an elector. Similarly, sub-section (3) of Section 12 of the 2006 Act which states that the composition of Boards of different categories of cantonments cannot be relied upon to hold that Defence Personnel and army personnel in the Cantonment are not qualified to be entered in the electoral roll when Section 28 (1) clearly says that every person who has resided in the cantonment for a period of six months immediately preceding the qualifying date shall be entitled to be enrolled as an elector. ( 14. ( 14. ) RULES 9 and 11 of the 2007 Rules are quoted herein below:- "9. Qualification of elector.- Every person who is eligible for enrolment as an elector under sub-section (1) of Section 28 of the act, and is not otherwise disqualified under sub-section (2) of the said Section shall be enrolled as an elector; 11. Manner of ascertaining names of electors for inclusion in the electoral roll.- (1) The Chief Executive Officer may for the purpose of preparing the electoral roll, send letters of request in form I-A to the occupants of dwelling houses in the Cantonment and every person receiving any such letter shall furnish the information called for therein to the best of his ability. (2) The Chief Executive Officer shall ascertain the names of members of the Armed Forces and other Defence Personnel residing in the unit lines or other buildings, who are eligible for registration in the electoral roll of the Cantonment, from the officer Commanding the Station or the Officer Commanding the unit, as he deems necessary. " ( 15. ) RULE 9 states that every person who is eligible for enrolment as an elector under sub-section (1) of Section 28 of the 2006 Act and is not otherwise disqualified under sub-section (2) of Section 28 shall be enrolled as an elector. Sub-section (2) of Section 28 of the 2006 Act does not disqualify members of the armed forces or the Defence Personnel residing in the Cantonment from being enrolled as an elector. Rather, sub-rule (2) of Rule 11 quoted above provides that the Chief Executive Officer shall ascertain the names of armed forces and other Defence Personnel residing in the unit lines or other buildings who are eligible for registration in the electoral roll of the Cantonment from the Officer commanding the Station or the Officer Commanding the Unit. Thus, members of the armed forces and other Defence Personnel residing in unit lines or other buildings who were eligible for registration in the electoral roll of Cantonment under Section 28 of the 2006 Act are entitled to be enrolled as electors in the electoral roll of the Cantonment. ( 16. Thus, members of the armed forces and other Defence Personnel residing in unit lines or other buildings who were eligible for registration in the electoral roll of Cantonment under Section 28 of the 2006 Act are entitled to be enrolled as electors in the electoral roll of the Cantonment. ( 16. ) ON a reading of the different provisions and in particular Section 28 (1) of the 2006 Act and on a reading of the different provisions and in particular rules 9 and 11 of the 2007 Rules, therefore, we have no doubt in our mind that members of armed forces and other Defence Personnel residing in the unit lines and other buildings in the Cantonment who are qualified to be enrolled as electors are entitled to be included in the electoral roll of the Cantonment and contention of the petitioner to the contrary is misconceived. ( 17. ) THE second question to be decided by us is whether the provisions of Rule 12 of the 2007 Rules have been complied with before notifying the final electoral rolls of the Cantonment Board, Jabalpur. Rule 12 of the 2007 Rules is quoted herein below:- "12. Notice of publication of electoral rolls.- (1) Copies of the electoral roll prepared under Rule 10 shall be displayed at the notice board of the office of Cantonment Board, and at the same time notice of their preparation shall be displayed in Form II at the notice board of the said Office and at such places throughout the cantonment, there being at least one such place in each ward, as the board, or where a Board is not constituted, the Officer commanding the Station, may specify. (2) The notice shall also specify the mode in which claims and objections are to be preferred and disposed of. " ( 18. ) THE language of Rule 12 of the 2007 Rules would show that copies of electoral roll prepared under Rule 10 have to be displayed on the notice board of the Office of the Cantonment Board and at the same time notice of their preparation shall be displayed in the Form II at the notice board of the Office of the Cantonment and the notice shall also specify the mode in which claims and objections are to be prepared and disposed of. We find from the reply to Para 5. 9 filed by the respondent Nos. We find from the reply to Para 5. 9 filed by the respondent Nos. 2, 3 and 5 that preliminary electoral rolls were displayed on 20-11-2007 on the notice board of the Office of the Cantonment board, Jabalpur. Annexure R-8 annexed to the reply contains a photograph showing display of preliminary electoral rolls on 20-11-2007 of different wards of the Jabalpur Cantonment. We also find from the reply to Para 5. 9 filed by respondent Nos. 2, 3 and 5 that notice of the preparation of the preliminary electoral rolls in Form II as prescribed under Rule 12 (1) of the 2007 Rules was also displayed on 20-11 -2007 in the Office of the Cantonment Board. The notice in Form II stated that the preliminary electoral rolls of voters in the Cantonment of Jabalpur were open to inspection for general public at the Office of cantonment Board, Jabalpur daily between 11. 00 a. m. to 4. 00 p. m. up to 9-12-2007 and the notice further stated that claims and objections to the electoral rolls could be preferred in Form No. III and Form No. TV. From the statement in the notice in Form II that preliminary electoral rolls of Cantonment of Jabalpur were open to inspection at the Cantonment Board Office daily, we cannot infer that preliminary electoral rolls were not displayed in notice board. What the statement meant was that the preliminary electoral rolls displayed in the notice board of the Office of the Cantonment Board, Jabalpur were open to inspection daily between 11. 00 a. m. and 4. 00 p. m. up to 9-12-2007. We further find from the reply of the respondent Nos. 2, 3 and 5 to Para 5. 9 of the writ petition that 3,550 objections to the preliminary electoral roll were received. Thus, the contention of the petitioner in W. P. No. 2596/2008 that the preliminary electoral rolls were not displayed in the notice board to enable persons to file their claims and objections to the preliminary electoral roll is not at all correct. ( 19. ) IN the result, we do not find any merit in the writ petition and we accordingly dismiss the same and vacate the interim order passed by this Court on 13-5-2008. There shall be no order as to costs.