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2010 DIGILAW 3082 (ALL)

OM PRAKASH v. STATE OF U. P.

2010-10-05

UMA NATH SINGH, VIRENDRA KUMAR DIXIT

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JUDGMENT By the Court.—This bunch of writ petitions impugns four set of grievances, namely (i) illegal addition or deletion of the names of voters in electoral rolls, (ii) shifting or non-shifting of polling booths, (iii) rejection/acceptance of nomination papers and (iv) non-issuance/cancellation of caste certificates required for filing nomination papers in respect of reserved constituencies. Thus these writ petitions in bunch are being disposed of by this common order. 2. As regards the first set of grievance relating to addition or deletion of the names in voters’ lists, learned counsel for petitioners, Sri C.B. Pandey, referred to the judgment of 5 Judges Bench in the case of Indrajit Barua and others v. Election Commission of India and others, AIR 1986 SC 103 . Para 12 of the aforesaid judgment which appears to have a direct bearing on this issue reads as: “12. From the materials placed by the parties and the Election Commission, we have come to the conclusion that the Election Commission did not give directions contrary to the requirements of Section 16 of the Act and the revision of the 1979 electoral rolls could not be undertaken for reasons beyond the control of the Election Commission. As pointed out by us in our order of September 28, 1984, there was no dispute to the electoral roll of 1977 nor was any challenge advanced against the election of 1978 to the State Legislature held on the basis of such rolls. Admittedly, the 1979 rolls were the outcome of Intensive revision of the rolls of 1977. That being the position and in view of the proviso to sub-section (2) of 8 21 which we have extracted above the electoral rolls of 1979 were validly in existence and remained effective even though the process contemplated in sub-section (2) for revision had not either been undertaken or completed. It has been Indicated by a Constitution Bench decision of this Court in Lakshmi Charan Sen and others v. A.K.M. Hassan Uzzaman and others, C.As. 739-741/82 decided on 8.5.1985, that preparation and revision of electoral rolls is a continuous process not connected with any particular election but when an election is to be held, the electoral roll which exists at the time when election is notified would form the foundation for holding of such election. 739-741/82 decided on 8.5.1985, that preparation and revision of electoral rolls is a continuous process not connected with any particular election but when an election is to be held, the electoral roll which exists at the time when election is notified would form the foundation for holding of such election. That is why Sub-section (3) of Section 23 provides for suspension of any modification to the electoral roll after the last date of modification of nominations for an election and until completion of the election. We had, therefore, come to the conclusion that the electoral rolls of 1979 were not invalid and could provide the basis for holding of the elections in 1983. Whether preparation and publication of the electoral rolls are a part of the process of election within the meaning of Article 329(b) of the Constitution is the next aspect to be considered. In N.P. Ponnuswami v. Returning Officer, Namakkal Constituency and others, (1952) 1 SCR 218 , this Court had to decide the amplitude of the term “election”. Fazal Ali, J. speaking for the Constitution Bench indicated : “It seems to me that the word ‘election’ has been used in Part XV of the Constitution in the wide sense, that is to say, to connote the entire procedure to be go through to return a candidate to the legislature. The use of the expression “conduct of elections” in Article 324 specifically points to the wide meaning, and that meaning can also be read consistently into the other provisions which occur in Part XV including Article 329(b). That the word “election” bears this wide meaning whenever we talk of elections in a democratic country, is borne out by the fact that in most of the books on the subject and in several cases dealing with the matter, one of the questions mooted is, when the election begins. The subject is dealt with quite concisely in Halsbury’s Laws of England in the following passage under the heading “Commencement of the Election”: ‘Although the first formal step in every election is the issue of the writ, the election is considered for some purposes to begin at an earlier date. It is a question of fact in each case when an election begins in such a way as to make the parties concerned responsible for breaches of election law, the test being whether the contest is “reasonably imminent”. It is a question of fact in each case when an election begins in such a way as to make the parties concerned responsible for breaches of election law, the test being whether the contest is “reasonably imminent”. Neither the issue of the writ nor the publication of the notice of election can be looked to as fixing the date when an election begins from this point of view. Nor, again does the nomination day afford any criterion. The election will usually begin at least earlier than the issue of the writ. The question when the election begins must be carefully distinguished from that as to when “the conduct and management of” an election may be said to begin. Again, the question as to when a particular person commences to be a candidate is a question to be considered in each case.’ The discussion in this passage makes it clear that the word “election” can be and has been appropriately used with reference to the entire process which consists of several stages and embraces many steps, some of which may have an important bearing on the result of the process. ”We are not prepared to take the view that preparation of electoral rolls is also a process of election. We find support for our view from the observations of Chadrachud, C.J. in Laxami Charan Sen’s case (supra) that “it may be difficult, consistently with that view, to hold that preparation and revision of electoral roll, is a part of ‘election’ within the meaning of Article 329(b)”. In a suitable case challenge to the electoral roll for not complying with the requirements of the law may be entertained subject to the rule indicated in Ponnuswami’s case (supra). But the election of a candidate is not open to challenge on the score of the electoral roll being defective. Holding the election to the Legislature and holding them according to law are both matters of paramount importance. Such elections have to be held also in accordance with a time bound programme contemplate in the Constitution and the Act. The proviso added in Section 22(2) of the Act of 1950 is intended to extend cover to the electoral rolls in eventualities which otherwise might have interfered with the smooth working of the programme. Such elections have to be held also in accordance with a time bound programme contemplate in the Constitution and the Act. The proviso added in Section 22(2) of the Act of 1950 is intended to extend cover to the electoral rolls in eventualities which otherwise might have interfered with the smooth working of the programme. These are the reasons for which we came to the conclusion that the electoral roll of 1979 had not been vitiated and was not open to be attacked as invalid.” (emphasis supplied). 3. From the aforesaid discussions and conclusions, it is obvious that a defective electoral roll would not be a ground for challenging the election by way of an election petition. Sri C. B. Pandey also referred to Section 12-C of the U.P. Panchayat Raj Act, 1947 which contains specific grounds for challenging the Panchayat elections. The Section reads like: “Section 12-C Questioning of elections. (1) The election of Pradhan and member shall be questioned by an application presented to the prescribed authority within such time as may be prescribed on the grounds that : (a) the election has not been free by reason of corrupt practice, or (b) the result of election has been materially affected by improper acceptance or rejection of any nomination or gross failure to comply with the provisions of this Act or the rules. (2) This application may be presented by any candidate at the election or any elector. (3) The disposal of application maybe by summary hearing. (4) The revision against the order of the prescribed authority may be filed within thirty days before the District Judge. The decision of the revising authority shall be final. 4. The aforesaid provisions of the Act also do not provide that a defective electoral roll can be a ground for challenging Panchayat elections. 5. In this back ground, now the question that would arise for consideration of the Court is as to whether the petitioners are entitled to get the reliefs as prayed for in the writ petitions even after the stage of filing of nomination papers. The petitioners allege that they would be deprived of opportunity to exercise their right to vote because of some commissions or omissions on the part of authorities concerned. The petitioners allege that they would be deprived of opportunity to exercise their right to vote because of some commissions or omissions on the part of authorities concerned. It is also a settled law as laid down in the decision of Supreme Court hereinabove that a defective electoral roll would not be a ground for laying challenge to any election. Thus while taking into account the totality of circumstances as detailed in the writ petitions, we are of considered view that the petitioners deserve the reliefs to the extent of voting rights in exercise of our powers under Articles 226 and 227 of the Constitution of India. Moreover, there are some cases where the representations were submitted either before or around or immediately after issuance of election notification but the electoral rolls were not modified or suitably corrected for the reasons better known to the authorities. Thus, we dispose of all such writ petitions impugning the question of modification/correction in the electoral rolls with directions that the authorities shall decide the pending representations/ applications/appeals on merit before the scheduled dates of voting. 6. Coming to the question of shifting or non-shifting of polling booths, if the grievances of petitioners have not been addressed and redressed on administrative side due to paucity of time, that would not deprive them of their voting rights. Of course, in some cases depending upon their facts, it may also cause inconvenience to the voters because of distance of polling booths from their localities and/or because of disturbance even, as apprehended by some of the petitioners, likely to be caused by the anti social elements. But in that case, the Local Administration can be directed to ensure proper maintenance of law and order. Moreover, it would also be apposite to refer to Rule 6 of the U.P. Panchayat Raj (Election of Members, Pradhans and Up-Pradhans) Rules, 1994 which provides that the election officer concerned shall, with the previous approval of the District Magistrate, specify the polling stations for each constituency. Moreover, it would also be apposite to refer to Rule 6 of the U.P. Panchayat Raj (Election of Members, Pradhans and Up-Pradhans) Rules, 1994 which provides that the election officer concerned shall, with the previous approval of the District Magistrate, specify the polling stations for each constituency. As the scheduled dates for filing nomination papers are already on the verge of closure, the authorities may not be in position to do any thing in this regard, hence, we dispose of all the writ petitions impugning this issue with a direction to District Magistrates and Superintendents of Police concerned to ensure the safe passage of voters, both ways, to and fro, between their native places and the polling booths and also their safety during the presence and casting of votes at polling stations. 7. While dealing with third issue, namely rejection/cancellation/acceptance of nomination papers which has a direct bearing on the result of election, the same would provide material grounds for challenging the elections by way of election petitions before the Special Election Tribunals. In the 5 Judges Bench judgment of the Apex Court in the case of N.P. Ponnuswami v. Returning Officer Namakkal, AIR 1952 SC 64 , it has been held that the rejection or acceptance of nomination paper cannot be called in question under Article 226 and that any matter which has the effect of vitiating the election, should be brought only at appropriate stage in an appropriate manner before a Special Tribunal and should not be brought at an intermediary stage before any Court. Under the election law the only significance which the rejection of a nomination paper has consists in the fact that it can be used as a ground to call the election in question. 8. Besides, as per Article 243-O of the Constitution of India, there is a bar to the interference by courts in electoral matters. Thus we decline to entertain the writ petitions whereby the rejection and acceptance of nomination papers have been called in question. 9. So far as the questions of issuance and non-issuance of caste certificates etc. are concerned they do also relate to the question of rejection and acceptance of nomination papers for election to reserved seats, and thus, they may also go to the roots of the election process providing material grounds for questioning the election by way of election petition. 9. So far as the questions of issuance and non-issuance of caste certificates etc. are concerned they do also relate to the question of rejection and acceptance of nomination papers for election to reserved seats, and thus, they may also go to the roots of the election process providing material grounds for questioning the election by way of election petition. Thus, the writ petitions relating to this question are declined. 10. In the end, we may also like to say that the directions given hereinabove shall be complied with strictly by the authorities concerned and its copies shall be circulated throughout in the State of Uttar Pradesh to facilitate disposal of pending representations/appeals in terms of the directions as contained in the aforesaid paragraphs as also for rejection of representations submitted in respect of issues impugned in the writ petitions which are being dismissed by this order. 11. Thus, all these writ petitions in the bunch stand disposed of in the light of directions as the aforesaid. —————