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2013 DIGILAW 529 (PNJ)

Kuldip Kaur v. State Election Commission, Haryana

2013-04-25

AMOL RATTAN SINGH, SATISH KUMAR MITTAL

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JUDGMENT : - SATISH KUMAR MITTAL, J. The petitioners, who are members of one family, have filed the instant writ petition challenging the order dated 4.7.2012 (Annexure P-1) passed by the Electoral Registration Officer-cum-Sub Divisional Officer(C), Assandh under Section 22 of the Representation of the People Act, 1950 (hereinafter referred to as `the Act'), whereby on the application moved by respondent No.4, a resident of village Alipur Viran, the names of the petitioners have been ordered to be deleted from the voters list of village Alipur Viran on the ground that they are not the ordinary residents of the said village and are actually residing in the area of village Seodi by constructing their houses on their agricultural land; as well as the order dated 27.11.2012 (Annexure P-3), whereby the appeal filed by the petitioners against the said order under Section 24 of the Act has been dismissed by the District Electoral Officer-cum-Deputy Commissioner, Karnal by confirming the aforesaid finding of fact recorded by the Electoral Registration Officer. After notice, the respondents have filed the written statements. We have heard the learned counsel for the parties. Undisputedly, the petitioners have constructed their residential houses on their agricultural land situated in village Seodi. According to respondent No.4, the petitioners are residing in those houses. Village Seodi has no Panchayat and is a Bechirag Moja. However, the Gram Panchayat of village Seodi is Gularpur. Undisputedly, in the year 2010, the names of the petitioners figured in the voters list of Gram Panchayat, Gularpur, but later on they got their names entered in the voters list of village Alipur Viran. Respondent No.4, who is resident of village Alipur Viran made an application for deletion of the names of the petitioners from the voters list of village Alipur Viran alleging that the petitioners are not the ordinarily residents of village Alipur Viran, therefore, they are not eligible for registration of their names in the voters list of the said village. On the said application, the Electoral Registration Officer, Assandh issued notices to the petitioners and provided an opportunity of hearing to them. The report of the Halqa Patwari was sought to the effect, whether the petitioners are living in village Alipur Viran or in village Seodi at their Dera. The report of the Sub Tehsildar was also sought in this regard. The report of the Halqa Patwari was sought to the effect, whether the petitioners are living in village Alipur Viran or in village Seodi at their Dera. The report of the Sub Tehsildar was also sought in this regard. The Electoral Registration Officer along with his Assistant Electoral Registration Officer and Tehsildar, Assandh also visited village Alipur Viran and heard the village Chowkidar. On seeing the report and the other evidence collected during the spot inspection, it was found that the petitioners are actually living in their houses constructed on the agricultural land of village Seodi and not in village Alipur Viran. On the basis of the said finding, the Electoral Registration Officer ordered for deletion of the names of the petitioners from the voters list of village Alipur Viran vide order dated 4.7.2012. The said order was challenged by the petitioners in appeal before the Chief Electoral Officer. The Appellate Authority after hearing the arguments of the learned counsel for the parties and going through the report submitted by the Sub Divisional Officer(C), Assandh, who had gone on the spot to know the actual residence of the petitioners, dismissed the appeal and affirmed the finding of fact recorded by the Electoral Registration Officer to the effect that the petitioners are not the ordinarily residents of village Alipur Viran and are actually residing in village Seodi. The aforesaid two orders have been challenged by the petitioners in the present petition. Though both the authorities below, on the basis of the statements recorded by various persons of the village, the report and spot inspection, have recorded a finding of fact, but during the course of hearing of this petition, the learned counsel for the petitioners vehemently argued that the petitioners are owning and possessing a residential house in village Alipur Viran and their forefathers were also residing in the said village, and while ignoring those facts, a wrong finding was recorded by the authorities below that the petitioners are not residing in village Alipur Viran. Though it has been admitted that the petitioners had constructed a house on their agricultural land in village Seodi, but it was stated that they are residing in their previous house in village Alipur Viran, therefore, the deletion of their names from the voters list of village Alipur Viran was not justified. Though it has been admitted that the petitioners had constructed a house on their agricultural land in village Seodi, but it was stated that they are residing in their previous house in village Alipur Viran, therefore, the deletion of their names from the voters list of village Alipur Viran was not justified. Though a finding of fact was recorded by the authorities below, but in view of the fact that the issue is related to voting rights of the citizens, therefore, in the interest of justice, vide interim order dated March 13, 2013 we had directed the Sub Divisional Magistrate, Assandh to visit village Alipur Viran and find out the factual position at the spot as to whether the forefathers of the petitioners were ever residing in the said village or whether their families own/possess a residential house in the village. It was made clear that the Sub Divisional Magistrate should not be influenced by the fact that the petitioners had constructed a house in the Hadbast of village Seodi. Pursuant to the said order, Sub Divisional Magistrate, Assandh submitted her report by way of an affidavit dated March 30, 2013 stating therein that in compliance with the orders dated March 13, 2013 passed by this Court, she visited village Alipur Viran in presence of Tehsildar, Assandh-cum-Assistant Electoral Registration Officer, B.D.P.O. Nissing at Chirao and Naib Tehsildar, Karnal along with their subordinate staff, i.e., Gram Sachiv, Alipur and Gularpur (Seodi), Revenue Patwari of village Alipur Viran and Gularpur (Seodi), Sarpanch, Lambardar of village Alipur Viran and Gularpur (Seodi) where the petitioners were also asked to remain present in Government Primary School of the said village on March 26, 2013. It has been submitted that the deponent recorded the statement of Gurnam Singh (petitioner) in which he stated that he along with his wife, three children and his father Gurcharan Singh son of Karnail Singh is living in farm house situated in village Seodi for the last fifteen years. He further stated that he owns a house in village Alipur Viran where nobody resides. He said that his house is situated in Abadi Deh and there is no sale deed pertaining to the said house. He also produced copy of agreement dated March 22, 2012 in which neither his name nor his father's name was mentioned. He further stated that he owns a house in village Alipur Viran where nobody resides. He said that his house is situated in Abadi Deh and there is no sale deed pertaining to the said house. He also produced copy of agreement dated March 22, 2012 in which neither his name nor his father's name was mentioned. He further stated that they had got an affidavit executed on July 20, 2010 vide which Hardev Singh had sold the said property to his father Gurcharan Singh and uncles Swaran Singh, Balbir Singh and Jaspal Singh. They along with said uncles are residing in dera at village Seodi for the last fifteen years. His brother namely Jagwinder Singh is unmarried and lives in different Gurdwaras as Sewadar. His brother Satnam Singh is living in America and his wife is living in the Dera at Seodi. The said statement was attested by the Tehsildar, Assandh, BDPO, Nissing at Chirao, Naib Tehsildar, Karnal and Jagdev Singh, Chowkidar and Amar Singh, Lambardar of village Alipur Viran had witnessed the same. The petitioner again made the statement that Kuldeep Kaur wife of Satnam Singh has four Kanals of agricultural land in her name. They had put bricks on the said land for construction of the house. It has been further submitted that Swaran Singh and Balbir Singh sons of Karnail Singh, Smt. Paramjit Kaur wife of Jaspal Singh, Gurmez Singh son of Swaran Singh and Harwinder son of Balbir Singh made their joint statement that they along with their family are living in their respective houses at farm house Seodi Dera for the last fifteen years. They have some part in one house in village Alipur Viran for which agreement to sell had been executed on March 22, 2012. They have also purchased a plot of 0.7 Marla from Hardev Singh son of Amar Singh as per affidavit dated July 20, 2010. They have also produced photo copy of writing dated February 26, 2013 with regard to the purchase of property in village Alipur Viran. They have no other properties/houses prior to the properties mentioned in the said documents. It has been further submitted that the deponent along with the petitioners and officers/officials visited the claimed houses of the petitioners. They have also produced photo copy of writing dated February 26, 2013 with regard to the purchase of property in village Alipur Viran. They have no other properties/houses prior to the properties mentioned in the said documents. It has been further submitted that the deponent along with the petitioners and officers/officials visited the claimed houses of the petitioners. Firstly, they visited the house of Jaswant Singh in which Gurnam Singh (petitioner) claimed that Harwinder Singh son of Balbir Singh and Balbir Singh son of Karnail Singh executed agreement to sell off some part of the house on March 20, 2012. In his statement, said Jaswant Singh stated that he is owner of the house in which he along with his family is residing. He further stated that he had executed agreement to sell some part of the house to Balbir Singh and Harwinder Singh (petitioners) about one year back, but he did not remember that for how much amount he executed the said agreement. He further stated that he had not handed over the possession of the property under agreement to sell to the petitioners, who are living in their Dera at Seodi. He would hand over the possession of the property under agreement to sell to the petitioners after construction of his house in his plot situated outside. Further, the deponent along with other officials went to the site for which the petitioners were claiming to reside as per the affidavit of Hardev Singh. Shri Amar Singh, Lambardar, father of said Hardev Singh was found present in a room and in his statement he had stated that his son Hardev Singh had agreed to sell the land measuring 0.7 marla with the construction raised over it to Swaran Singh, Gurcharan Singh, Balbir Singh and Jaspal Singh sons of Karnail Singh, residents of Dera Seodi. Though they have mentioned in the affidavit dated July 20, 2010 that the possession of the land measuring 0.7 Marla has been given to the petitioners, but the possession of the same is still with him and all the articles placed in the room belong to him. There is no articles/goods of the said purchasers in the said property. It has been further reported that the deponent along with officers/officials went to the house under construction, which was claimed by the petitioners. There is no articles/goods of the said purchasers in the said property. It has been further reported that the deponent along with officers/officials went to the house under construction, which was claimed by the petitioners. On enquiry, it was stated by the neighbourer Gurmej Singh that the house under construction belongs to Bhagwant Singh and he was raising construction of his house. The Chowkidar of the village namely Jagdev Singh son of Swaran Singh and Rohtash Singh, Halqa Patwari had also confirmed the said facts. In the last, the deponent has stated that on careful examination of the relevant revenue record and the site inspection report, it has been concluded that no evidence was produced by the petitioners that their forefathers had possessed any house in village Alipur Viran. It has been further stated that though the petitioners had produced the agreement to sell dated March 22, 2013, affidavit dated July 20, 2010 and photo-copy of writing dated February 26, 2013, but the persons present on the spot stated that the petitioners are not in possession of these properties, and they themselves could not prove their possession by showing their articles lying at the spot. The so called sellers mentioned in the above documents too had recorded their statements that the petitioners are not in possession of the said properties in village Alipur Viran and they were never given the possession of the said property/house. It has been stated that the petitioners have failed to prove+ the existence of any ancestral house in village Alipur Viran or that their forefathers or the petitioners had possessed any house in village Alipur Viran. The aforesaid report further confirmed the finding of fact recorded by both the authorities below. Learned counsel for the petitioners filed objections to the aforesaid report by filing additional affidavit. We have gone through the objections, which, by and large, are reiterating the same facts, which have been examined in detail by the Sub Divisional Magistrate, and thereafter she came to the conclusion that the petitioners could not produce any evidence that their forefathers had possessed any house in village Alipur Viran. In view of the above, in our opinion, the petitioners names have rightly been deleted from the voters list of village Alipur Viran because they are not ordinarily residing in the said village. In view of the above, in our opinion, the petitioners names have rightly been deleted from the voters list of village Alipur Viran because they are not ordinarily residing in the said village. Thus, we do not find any illegality in the impugned orders passed by the authorities below. Since the petitioners are pursuing their case by making false claim and statements and producing wrong documents before the authorities below as well as before this Court, we dismiss this petition with costs which are assessed at Rs.10,000/-.