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Madhya Pradesh High Court · body

2008 DIGILAW 564 (MP)

RAMESH CHOUKSEY v. UNION OF INDIA

2008-04-09

A.K.PATNAIK, SHANTANU KEMKAR

body2008
Judgment ( 1. ) THIS is an appeal filed under Section 2 (1) of the M. P. Uchcha Nyayalaya (Khand Peeth Ko Appeal) Adhiniyam, 2005 against the order dated 7-4-2008 passed by learned Single Judge in W. P. No. 4063 of 2008. ( 2. ) THE relevant facts briefly are that the appellant is a resident of the area of the Cantonment Board, Jabalpur and he had contested the elections to the office of Member of the Cantonment Board in the years 1976,1982 and 1992 and was elected and he was also the Vice President of the Cantonment Board. In the final electoral roll for election of the Cantonment Board published on 3-1-2008, the name of the appellant has been shown at serial No. 3832 but his fathers name has been wrongly mentioned as late Bhagirath Chouksey instead of late Deen Dayal Chouksey. He filed an application for correction of the name of his father in the electoral roll on 17-3-2008. When no decision was taken on his application, he filed Writ Petition No. 4063 of 2008 under Art. 226 of the Constitution before this Court. The respondent No. 2 filed return contending inter alia that the application of the appellant for correction of his fathers name in the electoral roll was filed beyond the period of 20 days prescribed in sub-rule (1) of Rule 13 of the Cantonment Electoral Rules, 2007 (for short the Rules of 2007) and under sub-rule (7) of Rule 13 of the Rules of 2007, the Chief Executive Officer has to reject any claim or objection to the electoral roll which is not made within the period of 20 days. The learned Single judge accepted the contention of the respondents and dismissed the writ petition by the impugned order dated 7-4-2008. Aggrieved, the appellant has filed this appeal. ( 3. ) MR. Amit Shukla, learned Counsel lor the appellant, submitted that the appellant had been contesting the elections of the Cantonment Board since 1976 and there is no dispute that the appellant is a resident of Cantonment board, Jabalpur and is an elector and therefore this was a fit case in which the mistake in the electoral roll with regard to the name of father of the appellant should have been corrected pursuant to the application of the appellant filed on 17-3-2008. ( 4. ) MRS. Nair, learned Senior Counsel and Mr. ( 4. ) MRS. Nair, learned Senior Counsel and Mr. Dharmendra Sharma, learned Assistant Solicitor General appearing for the respondents, on the other hand, submitted that in view of the provision in sub-ruled (7) of Rule 13 of the rules of 2007 that any objection to the electoral roll filed beyond the period of 20 days from the date of publication of the notice referred to in Rule 12 of the rules of2007 has to be rejected, the Chief Executive Officer of the Cantonment board could not possibly consider the application of the appellant for correction of the name of father of the appellant in the electoral roll. ( 5. ) WE find on a reading of the impugned order dated 7-4-2008 passed by the learned Single Judge that the learned Single Judge has observed that it is trite law that whenever limitation is provided by a statute (Act, Rule or Byelaw), power to condone the delay is to be necessarily engrafted therein. This is not an accurate statement of the law Section 29 (2) of the Limitation Act, 1963, which states the law on the point is quoted herein below:. "29. Savings. (1 ). . . . . . (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. " The language of Section 29 (2) of the Limitation Act makes it clear that unless the special law or local law expressly excludes application of provisions contained in Sections 4 to 24 (inclusive) of the Limitation Act, 1963, the provisions in Sections 4 to 24 shall apply even to limitation prescribed f0r any suit, appeal or application, under any special law. ( 6. ) SUB-RULES (1) and (7) of Rule 13 of the Rules of 2007, which are relevant are quoted herein below: "13. Claims and objections. ( 6. ) SUB-RULES (1) and (7) of Rule 13 of the Rules of 2007, which are relevant are quoted herein below: "13. Claims and objections. (1) Every claim for the inclusion of a name in the electoral roll and every objection to an entry therein shall be made within a period of twenty days from the date of publication of the notice referred to in rule 12. (3 ). . . . . . . . . . . . . . . . . . . . . (4 ). . . . . . . . . . . . . . . . . . . . (5 ). . . . . . . . . . . . . . . . . . . . . (6 ). . . . . . . . . . . . . . . . . . . . . (7) The Chief Executive Officer shall reject any claim or objection which is not made within the period or in the form and manner specified in this rule. " It will be clear from sub-rule (1) of Rule 13 of the Rules of 2007, quoted above that any objection to an entry in the electoral roll has to be made within a period of twenty days from the date of publication of the notice referred to in rule 12. Sub-rule (7) of Rule 13 further provides that the Chief Executive officer shall reject any claim or objection which is not made within the period specified in the rule. Hence by virtue of the provision in the special law contained in sub-rule (7) of Rule 13 of the Rules of 2007, Section 5 of the limitation Act, 1963 for condoning delay in filing an objection filed beyond the period of twenty days is expressly excluded. The result is that the application of the appellant for correction of the name of his father in the electoral roll having been filed beyond the period of twenty days from the date of publication of the notice referred to in Rule 12 could not be entertained and has to be rejected by the Chief Executive Officer. ( 7. ) MR. ( 7. ) MR. Shukla next submitted that the appellant had also made a prayer in the writ petition for a direction to the respondents not to reject the nomination paper of the appellant on the ground of such wrong entry with regard to the name of his father in the voter list but the learned Single Judge has held in the impugned order that the appellant having not made the objection to the wrong entry within twenty days from the date of publication of the electoral roll cannot seek a direction to the respondents to consider the nomination form of the appellant containing particulars not tallying with those contained in the voter list. He submitted that since the name of the appellant has been entered on the electoral roll of the Cantonment and that the identity of the appellant is beyond doubt, the learned Single Judge was not correct in refusing the relief on the ground that the particulars of the appellant do not tally with those contained in the voter list. ( 8. ) HE further submitted that in the Proviso to sub-section (4) of section 33 of the Representation of People Act, 1951 (for short the Act of 1951), it is provided that no misnomer or inaccurate description or clerical, technical: or printing error in regard to the name of the candidates his proposer or any other person, or in regard to any place, mentioned in the electoral roll shall affect the full operation of the electoral roll or the nomination paper with respect to such person or place in any case where the description in regard to the name of the person or place is such as to be commonly understood and the returning officer shall permit any such misnomer or inaccurate description or clerical or technical or printing error has to be corrected and where necessary, direct that any such misnomer, inaccurate description, clerical, technical or printing error in the electoral roll or in the nomination paper shall be over-looked. He submitted that this provision has been engrafted as a Proviso to sub-section (4) of Section 33 of the Act of 1951 to ensure that the nomination paper of a candidate whose name is entered in the electoral roll and Who is properly identified, is not rejected on technical grounds. He submitted that this provision has been engrafted as a Proviso to sub-section (4) of Section 33 of the Act of 1951 to ensure that the nomination paper of a candidate whose name is entered in the electoral roll and Who is properly identified, is not rejected on technical grounds. He submitted that since the name of the appellant has been entered in the electoral roll of the cantonment Board and the identity of the appellant is beyond doubt, the nomination paper of the appellant cannot be rejected on the ground that his fathers name has been shown as late Bhagirath Prasad Chouksey and not as late Deen Dayal Chouksey. ( 9. ) MRS. Nair and Mr. Sharma, on the other hand, submitted that proviso to sub-section (4) of Section 33 of the Act of 1951 is not applicable to elections to the Cantonment Board and that only the provisions of the cantonments Act, 2006 (for short the Act of 2006) and the Rules of 2007 are applicable. ( 10. ) SUB-SECTION (1) of Section 29 of the Cantonments Act, 2006, which is relevant is quoted herein below: "29. Qualification for being u member of the Board. (1) Save as hereinafter provided, every person, not being a person holding any office of profit under the Government, whose name is entered on the electoral roll of a cantonment shall be qualified for election as a member of the Board in that cantonment. " It will be clear from the language of sub-section (1) of Section 29 of the act of 2006 that every person whose name is entered on the electoral roll of the cantonment shall be qualified for election as a Member of the Board. Thus, in the event the appellant files the nomination paper, the Returning Officer will have to apply his mind to the aforesaid provision in sub-section (1) of Section 29 of the Act of 2006 and take a decision whether or not, the nomination paper of the appellant will have to be accepted. Thus, in the event the appellant files the nomination paper, the Returning Officer will have to apply his mind to the aforesaid provision in sub-section (1) of Section 29 of the Act of 2006 and take a decision whether or not, the nomination paper of the appellant will have to be accepted. Since the appellant had not filed his nomination form and stage of scrutiny and examination of nomination form by the Returning Officer had not come, it was premature for the learned Single judge to express any opinion on the merits of the claim of the appellant and for this reason, we delete the observations of the learned Single Judge in the impugned order that the Returning Officer cannot consider the nomination of the appellant because the particulars of the appellant do not tally with those contained in the voter list. ( 11. ) WITH the aforesaid observations, the appeal is disposed of. Considering the facts and circumstances of the case, the parties to bear their respective costs.