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Madhya Pradesh High Court · body

2015 DIGILAW 91 (MP)

Arjun Singh Parihar v. State of M. P.

2015-01-23

SHEEL NAGU

body2015
JUDGMENT : Sheel Nagu, J. 1. This petition under Article 226 of the constitution of India seeks the following reliefs:- 2. The basic grievance of the petitioner is that his name has been wrongly removed from the voter list published in the ongoing Panchayat Elections of Gram Panchayat Gujarra, Janpad Panchayat Datia and therefore, he is unable to contest elections which is statutory right. 3. The undisputed fact which come to light from the pleadings in the petition are that on 18.10. 2014 registration authority deleted the name of the petitioner and his other family members whereafter the petitioner has not preferred any appeal within five days prescribed for the same under Rule 12 (5) of the M.P. Panchayat Nirvachan Niyam, 1995 (1995 Niyam for brevity). The appeal of the petitioner was infact preferred on 12.11. 2014 which was much after the prescribed period of five days. 4. It is not further disputed that notification under Rule 28 of the 1995 Rules has since been issued and the election process to the three tier Panchayats are at an advanced stage where polling of the first phase is to be held on 5th of February, 2015. 5. After hearing the learned counsel for the respondent on advance notice, this court deems it appropriate to dismissed this petition in limine. 6. Rule 15 and 15 (A) Provide for appeal against change in the voter list finally published after the same is finalised under Rule 12 (4) subject to the orders passed by the appellate authority under Rule 12 (5) provided by appellate authority in appeals filed in accordance with law under Rule 12 (5). Rule 12 (A) is an exception to Rule 15, empowering Registration Officer to delete wrongfully included names in the voter list finalized under Rule 12. 7. The enabling Provisions under Rule 12 (5) and 15 (A) (I) bestows power upon the appellate and Registration Authority to amend the finalized voter list subject to the fact that the notification under Rule 28 publishing the time schedule for the election has not been issued. 8. It is undisputed and well known fact that the notification under Rule 28 has been published on 15.12.2014. 9. 8. It is undisputed and well known fact that the notification under Rule 28 has been published on 15.12.2014. 9. In view of the bar contained in statutory provisions under the 1995 Rules, no amendment can take place after publication of notification under Rule 28 As such even if the contention of the petitioner are held to be true no amendment should be done to the voter list which has been finalised after publication of the election programme under Rule 28. 10. At this juncture this court hastens to add that the above said finding may not be read as a complete bar to the election process being amenable to writ jurisdiction. The power of judicial review is plenary in nature and is concomitant of the basic structure of the Constitution and therefore cannot be curtailed by any statutory or even constitutional embargo. However this power needs to be exercised with due care and caution. 11. When judicial review is sought for intervention in matters of ongoing election progress, the court adopts caution and circumspection of a much higher degree and only where exceptional case of rampant irregularity and illegality is made out and where election process if allowed to continue would, lead to injustice to the majority of the electorate and would be a farce, that the superior court steps in. The Apex Court in the case of Election Commission of India v. Ashok Kumar and Ors. reported in : (2000) 8 SCC 216 has summed up the law laid down in this respect regarding scope and interference in election matter of exercising power of judicial review by superior courts after restating earlier decisions rendered by it in the following manner :- (1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections. (2) Any decision sought and rendered will not amount to "calling in question an election" if it sub-serves the progress of the election and facilitates the completion of the election. (2) Any decision sought and rendered will not amount to "calling in question an election" if it sub-serves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election. (3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory being shown to have acted in breach of law. (4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the court. (5) The court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilize the court's indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the court would act with reluctance and shall not act, except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material. 12. In the present case where the petitioner and his family members who form minuscule percentage of the total Electorate of Gram Panchayat, have been deprived of their rights to vote and contest in elections, cannot successfully bring their case within the ambit of one of the above said exceptions. 12. In the present case where the petitioner and his family members who form minuscule percentage of the total Electorate of Gram Panchayat, have been deprived of their rights to vote and contest in elections, cannot successfully bring their case within the ambit of one of the above said exceptions. Moreso, the petitioner has also not been vigilant as he has not filed appeal within the prescribed period of five days against the order of Registration Officer. The submission of learned counsel for the petitioner that the order of the Registration Authority passed under Rule 12 (3) was not known to the petitioner is unacceptable, since the petitioner should have always verify the fact of the Registration Officer finalizing the list under Rule 12 (3) after considering the claims objections. Not having done so, the petitioner cannot be extended any benefit. 13. It is settled principle of law that law assists the vigilant and not the indolent. 14. In view of the above, no case for inference is made out in the present writ petition which is dismissed without costs.