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Allahabad High Court · body

2010 DIGILAW 1768 (ALL)

RAMESH KUMAR MISHRA v. STATE OF U. P.

2010-05-26

ASHOK BHUSHAN, VIRENDRA SINGH

body2010
JUDGMENT Hon’ble Virendra Singh, J.—In these two writ petitions, the petitioners have prayed for a writ, order or direction in the nature of mandamus directing the respondents to correct the impugned electoral roll for Panchayat Election 2010, Amilo by deleting the names of 142 illegal voters from electoral roll published on 20.2.2010 and further for a writ in the nature of mandamus directing the respondents to fix the polling centre/polling booths at 163 Junior High School, Amilo for Panchayat Election 2010 thereby cancelling the polling centre/polling booth at Primary School, Amilo, which is adjacent to the house of respondent No. 9 Vijay Kumar Mishra. 2. We have heard Sri V.S. Singh, Sri M.D. Singh Shekhar Senior Advocate, Sri S.C. Tiwari learned counsel for the petitioner, Sri Sashi Nandan, learned Senior Counsel alongwith Sr. R.K. Shukla, V.P. Shukla appearing for private respondent No. 9 and learned counsel Sri Rangnath Pandey, Sri Satyendra Kumar Singh and learned Standing Counsel for State respondents. 3. On behalf of the petitioner it is submitted that for the purpose of Panchayat Election 2010, a news was published on 20.12.2009 for filing the objections against the publication of electoral roll in draft under Rule 8 of U.P. Panchayat Raj (Registration of Electors) Rules 1994. The objections had to be filed from 28.12.2009 to 3.1.2010. Within that period, objections against 117 wrongly recorded voters in the electoral roll of Village Panchayat, Amilo were filed on prescribed proforma by the petitioner but due to undue political pressure made by respondent No. 9, no enquiry was made in this regard and the electoral roll was published on 20.2.2010 without considering and deciding the objections raised by the petitioner and other persons of the village concerned which is wholly illegal and arbitrary. 4. The petitioner filed appeal under Section 21-A(1) against the impugned electoral roll dated 20.2.2010 promptly on 22.2.2010 before respondent No. 4 District Election Officer/District Magistrate, Allahabad, but nothing is done in the said appeal till the date of filing the writ petition by the authorities concerned. As per knowledge of the petitioner, on the other hand, any time, the notification for Panchayat Election 2010 is likely to be issued and the claim of the petitioner shall become infructuous and therefore the petitioner has no other option except to approach this court by way of the present writ petition. 5. As per knowledge of the petitioner, on the other hand, any time, the notification for Panchayat Election 2010 is likely to be issued and the claim of the petitioner shall become infructuous and therefore the petitioner has no other option except to approach this court by way of the present writ petition. 5. It is also submitted by the petitioner that change of the polling centre/polling booth to Primary School, Amilo which is adjacent to the house of respondent No. 9, who is the sitting Pradhan elected in Panchayat Election 2005 is managed for its misuse by the sitting Pradhan while, there is another school I.e, 163 Junior High School Amilo and another second building of Junior High School Amilo situated to the east side of main building having big halls suitable for polling booth/polling station, wherein Lok Sabha Election 2009 was very peacefully conducted. 6. On behalf of respondent No. 9, it is submitted that Rule 9 of U.P. Panchayat Raj (Registration of Electors) Rules 1994 provides the claims to inclusion of names in the roll of territorial constituency of a gram panchayat. Rule 10 provides the objection to entries in the roll. Rule 11 provides the period of lodging claims and objections and Rule 12 provides the particulars regarding claims and objections. Similarly, as per Rule 6 of U.P. Panchayat Raj (Election of Members and Pradhans) Rules 1994 provides the polling places stating therein that the Nirvachan Adhikari shall with the previous approval of the DM specify the polling places for each constituencies. Sarju Prasad and Other persons of different community of Gram Panchayat Amilo, had represented stating that in the earlier assembly elections and in the panchayat elections, the polling station of the SC/ST Community/Patel-Mushahra Community was in the Primary School, Amilo and on the enquiry made by the authorities, the polling station at Primary School, Amilo was continued. The State Election Commission, U.P. had also issued the orders on 15.10.2009 in this regard and in compliance thereof, the District Magistrate/District Election Officer sent the order on 22.10.2009 for fixing of polling centres. The State Election Commission, U.P. had also issued the orders on 15.10.2009 in this regard and in compliance thereof, the District Magistrate/District Election Officer sent the order on 22.10.2009 for fixing of polling centres. The petitioner is intending to contest the election of Pradhan and therefore he made frivolous complaints regarding deletion of certain names from the electoral roll of Gram Panchayat, Amilo but the same were not verified by any electoral of Gram Panchayat, Amilo and therefore thereby finding that there was no compliance of Rule 12, the objections of the petitioner were rejected by the Assistant Election Officer on 3.1.2010, against which no appeal was filed by the petitioner before the District Magistrate, Allahabad provided by Rule 21 of the Rules 1994. On 16.1.2010, the electorals namely, Prem Shankar, Raj Kumar, Rajendra Prasad, Mata Prasad, Ram Shiromani, Vidyakant and Yogeshwar Nath filed their affidavits alongwith the copy of Kutumb Register stating that their family members are residents of Gram Panchayat, Amilo and so their names have been included in the voters list of Gram Panchayat, Amilo and they want to continue in the voters list of Gram Panchayat, Amilo. 7. The main dispute in this petition is that objections against 117 voters were filed on prescribed proforma by the petitioner, who are said to have been wrongly recorded as voters in the electoral roll of Village Panchayat, Amilo. Proforma No. 4 is prescribed in the Rules on which the objections have to be filed. Supplementary affidavit filed on behalf of the petitioner furnished the details in this regard. Respondent’s contention is that since the objections were not filed in accordance with Rule 12, therefore, the objections have been rightly rejected by the Assistant Election Officer. In this regard, Rule 12 is to be perused which is quoted as below: “Particulars regarding claims and objections - Every application under Rule 9 or Rule 10 shall be signed and verified by the applicant and also verified by another person whose name is already included in that part of the roll in respect of which the application is mae and shall be presented to the Assistant Electoral Registration Officer.. (2) The application shall state the the grounds on which, the inclusion, correction or deletion,as the case may be, of any entry is sought and also the full particulars of such entry as required in the relevant form. (2) The application shall state the the grounds on which, the inclusion, correction or deletion,as the case may be, of any entry is sought and also the full particulars of such entry as required in the relevant form. (3) The application in form 4 shall be in duplicate, one copy of which shall be served on the person whose name is sought to be deleted.” 8. Perusal of the record shows that the objections, no doubt, have been filed on Proforma IV but since the objections have been signed merely by Sri Ramesh Kumar Mishra, the petitioner and they have not been verified by another person, whose name is already included in the electoral roll in respect of which the application is made, therefore, we do not find any illegality or irregularity with regard to rejection of the objections filed by the petitioner. 9. The scheme provided under U.P. Panchayat Raj (Registration of Electors) Rules 1994 shows that Rule 10 provides that any person whose name is entered in the roll of a territorial constituency of Gram Panchayat and who has objection to any particulars in such entry in respect of himself and want to get it corrected, he may apply in Form No. 3 and who objects to the inclusion of the name of any other person in the roll on the ground that he is not qualified or has been disqualified to be registered in such roll, may apply in Form No. 4. Every application in this regard shall be made within a period of seven days form the date of publication of the roll. Herein this case, since the objections were raised for the name of other persons in the roll, therefore the petitioner furnished the objections in Form No. 4, which were rejected being not found verified by another person whose name is already included in the roll as is provided in Rule 12(1). Rule 14 provides that any application under Rule 9 or 10, i.e. for claims to inclusion of names in the roll and objections to entries in the roll, if not lodged within the period or in the form or manner as provided in the Rules, shall be rejected by the Assistant Electoral Registration Officer and in our view, the same have been rightly rejected being not verified by another person registered in the Roll as is prescribed under the Rules. 10. 10. Rule 18 provides the procedure of deletion of names of dead electors and of persons who ceased to be or are not ordinarily residents. The Rule is quoted as below : “18. Deletion of names of dead electors and of persons who cease to be or are not ordinarily residents.—If it appears to the Assistant Electoral Registration Officer during preparation of the roll that owning to inadvertence or error or otherwise, the name of dead persons or of persons who ceased to be, or are not, ordinarily residents in the area of the territorial constituency, have been included in the roll and that remedial action should be taken under this rule he shall, - (a) prepare a list of the names and other details of such persons; (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 such names from 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 rule in respect of any person on the ground that he h as ceased to be, or is not, ordinarily resident in the territorial constituency the Assistant Electoral 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.” 11. The aforesaid Rule provides that even any verbal or written objection that may be preferred, shall be considered. On the strength of aforesaid Rule, it is submitted on behalf of the petitioner that despite the objections being not found verified on proforma 4, as per Rule 18(c), it was incumbent upon the authorities to enquire and decide to delete the names of those persons who are not resident of the place concerned and who have died. On the strength of aforesaid Rule, it is submitted on behalf of the petitioner that despite the objections being not found verified on proforma 4, as per Rule 18(c), it was incumbent upon the authorities to enquire and decide to delete the names of those persons who are not resident of the place concerned and who have died. The proviso appended to Rule 18 provides that before taking any action under Rule 18 in respect of any person on the ground that he has ceased to be, or is not, ordinarily resident in the territorial constituency, the Assistant Electoral 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. Page Nos. 62 to 71, the documents appended with the counter-affidavit, shows that such type of enquiry has already been made by the authorities which shows that some names from the roll of electorals have been deleted and therefore, it cannot be said that the oral objections if any made by any of the person regarding deletion of name of dead electors or persons who ceased to be not ordinarily residents of the same village, have not been heard and decided. Record does also reveal that some of the electors were found to have been registered on two places and therefore on the basis of their affidavits they have been retained in one electoral roll and their names have been deleted from the other other electoral rolls. 12. So far the question of change of place for polling booth is concerned, we do not find any merit in the contention of the petitioner that prmiary school is selected for this purpose merely on the pressure of Respondent No. 3, the sitting Pradhan facilitating him for misuse of the place being it near the house of Respondent No. 5. The Authorities have to take care of the fair elections and for this purpose they are the best judge to locate or fix the place of polling booth. We do not find it expedient to enter into the merits of the disputed facts in the writ jurisdiction as to who is intending to contest the election or who would be in a position to misuse the place selected for polling booth, as all such type of objections/contentions are imaginary. 13. We do not find it expedient to enter into the merits of the disputed facts in the writ jurisdiction as to who is intending to contest the election or who would be in a position to misuse the place selected for polling booth, as all such type of objections/contentions are imaginary. 13. Learned counsel for the petitioner lastly contended that appeals under Rule 21-A of the 1994 Rules have been filed by the petitioners, but the said appeals have not yet been decided. Learned counsel for the respondent contended that the appeals were not maintainable under Rule 21-A since no decision was taken by the Assistant Electoral Registration Officer with regard to the claims and objections of deletion of names. Learned Standing Counsel who has filed a short counter-affidavit in WP No. 14903/2010 submitted that still the petitioners have opportunity to file objections against the electoral roll in view of the notification dated 4.5.2010 issued by the State Election Commission. The notification dated 4.5.2010 issued by the State Election Commission has been filed as Annexure SCA-6 to the counter-affidavit of the State according to which, the period for receiving applications for amendment/modification of electoral roll is from 17.5.2010 to 31.5.2010. Learned Standing Counsel submits that the petitioners still can file their objections against the names of voters who according to the petitioners have wrongly been included in the electoral roll in pursuance of the notification dated 4.5.2010. It is submitted that the District Electoral Registration Officer has also issued a consequential notification dated 6.5.2010. 14. After having considered the above submissions of learned counsel for the parties, we are of the view that it is not necessary for us to enter into the issue as to whether the appeals filed by the petitioners under Rule 21-A were properly filed or needs to be decided, ends off justice be served in giving liberty to the petitioners to file objections as per notification dated 4.5.2010 by 31.5.2010 before the competent authority giving details of the objections which may be considered by the competent authority before issuing supplementary electoral list. The competent authority shall consider the objections and decide the same by a reasoned order, especially, in view of the fact that the objections which were raised by the petitioners were earlier rejected on technical grounds and the objections do not appear to have been considered on merits. 15. The competent authority shall consider the objections and decide the same by a reasoned order, especially, in view of the fact that the objections which were raised by the petitioners were earlier rejected on technical grounds and the objections do not appear to have been considered on merits. 15. In result, both the writ petitions are disposed of with liberty to the petitioners to file their objections against the electoral roll in purusance of the notification dated 4.5.2010, on or before 31.5.2010, which may be decided by the competent authority by a reasoned order. The parties shall bear their own costs. —————