Lakshmidevi W/o. Suresh C. R. v. Chief Electoral Officer of the Chief Electoral Officer
2017-02-01
R.S.CHAUHAN
body2017
DigiLaw.ai
ORDER : Raghvendra S. Chauhan, J. The petitioners have made the following prayers before this Court : a. Issue a Writ of Mandamus directing the respondents to include the names of the petitioners in the electoral list as the residents of Chikkappanni Palya Village, Hathri Post, Kasaba Hobli, Magadi Taluk, Ramanagara District, within the Regional Electoral Constituency of Sidaganahalli, Magadi Taluk, Ramanagara District b. Issue a Writ of Mandamus directing the respondents to permit the first petitioner to file her nomination to contest for the forthcoming Sidaganahalli constituency of Belgagumba Panchayath, Magadi Taluk, Ramangara District, scheduled to be held pursuant to the Calendar of Events issued by the Third Respondent at Annexure-K. c. Award costs. 2. Briefly the facts of the case are that the petitioners claim to be the permanent residents of the village, Chikkappanni Palya, in Magadi Taluk, Ramanagara District. According to them, the father of the second petitioner, Mr. Ramanna, owned agricultural land in Survey No.57/2 of Sidiganahalli Village, Kasaba Hobli, Magadi Taluk. Furthermore, according to them, the ration card issued to both the petitioners also confirms the fact that they were the permanent residents of Chikkappannipalya village. Furthermore, according to petitioner No.2, Mr. Suresh C.R., his name was included in the voters list of the said village. However, since the petitioners were not in a position to eke out their livelihood in the village, they shifted to Magadi Town, with an intention to commence a business, or a trade. While staying at Magadi Town, they net only got their address changed, but also got their names entered in the voters list of Magadi Town. 3. But, unable to eke out a comfortable livelihood at Magadi Town, the petitioners shifted back to their village. Subsequently, on 25.1.2017 they filed an application for canceling their name in the voters list of Magadi Town. They also filed an application for inserting their name in the voters list of their village. Despite the application submitted on 25.1.2017, so far, no action has been taken by the concerned Tahsildar. Instead, on 30.1.2017, the Deputy Commissioner has announced the calendar of events for the forthcoming Grama Panchayat elections, including the elections to the Sidaganahalli constituency of Belagumba Panchayat, Magadi Taluk, Ramanagara District. According to petitioner No. 1, she is an aspirant for contesting the said election as the constituency has been reserved for "woman".
Instead, on 30.1.2017, the Deputy Commissioner has announced the calendar of events for the forthcoming Grama Panchayat elections, including the elections to the Sidaganahalli constituency of Belagumba Panchayat, Magadi Taluk, Ramanagara District. According to petitioner No. 1, she is an aspirant for contesting the said election as the constituency has been reserved for "woman". According to the petitioners, the last date for filing the nomination is 02.02.2017, as the last date for withdrawal of the nomination papers is 06.02.2017, and the date of election is 12.2.2017. Hence, this petition before this Court with aforesaid prayers. 4. Mr. Subramaiiya S., the learned counsel for the petitioners, has raised the following contentions before this Court :- Firstly, under Section 9 of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 {'the Act' for short), a person has a right to vote in an election, provided his name appears in the voters' list relating to the said constituency. Secondly, since the petitioners have shifted back from Magadi Town to their village, they have a right to seek the re-insertion of their names into the voters list of the said village. They had filed their application on 25.1.2017. According to Section 10(2) of the Act, an amendment can be made in the voters list till such date for making the nomination for an election for the Grama Panchayat. Therefore, the Tahsildar has ample time to insert the petitioners' name in the voters list of the village. However, the Tahsildar has failed to perform his duty. Thus, he has deprived the petitioners of their right to vote, and deprived the petitioner No. 1 of her right to contest the election. Thirdly, the Act is silent on the procedure that needs to be adopted for amending the voters list. Therefore, the Tahsildar is required to immediately insert the name as soon as an application is made. Fourthly, Rule 12 of the Karnataka Panchayat Raj (Conduct of Election) Rules, 1993, ('the Rules', for short) clearly stipulates that after the calendar of events has been announced, seven days time needs to be given for filing the nomination papers. Therefore, the Tahsildar could have made the necessary amendment in the voters list till the filing of the nomination paper, i.e. till 2.2.2017. However, he has failed to do so.
Therefore, the Tahsildar could have made the necessary amendment in the voters list till the filing of the nomination paper, i.e. till 2.2.2017. However, he has failed to do so. Lastly, relying on the case of C. Mahadevaiah And Another v. Electoral Registration Officer, (Writ Petition No. 11978/2010 c/w. Writ Petition No. 13856/2010, decided by this Court on 22.4.2010), the learned counsel has pleaded that a direction can be issued, by this Court, to the Tahsildar to insert the petitioners' name immediately in the voters list. 5. Heard the learned counsel for the petitioners. 6. It is, indeed, trite to state that right to vote, and right to contest an election is not a fundamental right, but is a statutory one. Section 9 of the Act is as under : Section 9. Right to vote.- (1) Every person whose name appears in the voters list relating to a constituency shall, subject to the other provisions of the Act he entitled to vote at any election which takes place in that constituency while the voters list remains in force and no person whose name does not appear in such voters list shall vote at any such election. (2) No person shall vote at an election under this Act in more than one constituency or more than once in the same constituency and if he does so, all his votes shall be invalid. (3) It shall be the duty of every person whose name appears in the voters list of a Gram Panchayat to vote at the election of panchayat and it shall be compulsory. However, he will be free to cast his vote in favour of none of the candidates contesting election as indicated in sub-section (4). (4) In (sic) Election Commissioner makes a suitable provision, the qualified voter shall cast his vote in favour of none of the candidates contesting at the election, in case where he does not want to cast his vote in favour of any candidate. 7. A bare perusal of the said provision clearly reveals that a person would have the right to vote, provided his name appears in the voters list relating to a constituency. It further provides that "no person whose name does not appear in such voters list, would not be entitled to vote." Moreover, a person cannot vote at two different places in the same election.
It further provides that "no person whose name does not appear in such voters list, would not be entitled to vote." Moreover, a person cannot vote at two different places in the same election. Section 10 of the Act is as under : Section 10. List of voters.- (1) Subject to the provisions of sub-section (2), the electoral roll of the Zilla Panchayat for the time being in force for such part of the constituency shall be deemed to be the list of voters for such Grama Panchayat constituency. (2) No amendment, transposition or deletion of any entry in the electoral roll of the Zilla Panchayat made after the last date of making nominations for an election in any Grama Panchayat constituency and before the completion of such election shall form part of the list of voters for such election for the purpose of this section. (3) the Tahsildar concerned shall prepare in the prescribed manner, a list of voters for each Grama Panchayat constituency and the Secretary of the Grama Panchayat shall maintain a copy of such list. 8. A bare perusal of this provision clearly reveals that while Section 10(2) of the Act contains a provision, and does not permit any amendment, transposition or deletion of any entry in the electoral roll after the last date of nomination. But even the said provision does not provide the procedure for amendment, or insertion of a name in the voters list. Thus, even Section 10 of the Act is silent with regard to the procedure which needs to be adopted for inserting a name in the voters list. 9. It is, indeed, a settled principle of law that where a specific law is silent, and the same arena is covered by general law, then the provisions of general law would have to be read into the specific law. Undoubtedly, both the Panchayat Raj Act and the Rules are silent on the process and the procedure to be adopted by the Tahsildar for amending the voters list. However, the Registration of Electors Rules, 1960, ('the Rules of 1960' for short) have been framed under the Representation of People Act, 1950. These Rules do contain an elaborate procedure for preparation of the voters list. 10. Under these Rules, Rule 2(e) defines the word "Roll" as making an electoral roll for a constituency.
However, the Registration of Electors Rules, 1960, ('the Rules of 1960' for short) have been framed under the Representation of People Act, 1950. These Rules do contain an elaborate procedure for preparation of the voters list. 10. Under these Rules, Rule 2(e) defines the word "Roll" as making an electoral roll for a constituency. Rule 5 deals with ''preparation of roll in parts." Rule 6 deals with the "order 01 names to be shown in the electoral roll." According to Rule 6 of the Rules of 1960, the name shall be arranged according to house number. It further stipulates that "names of electors in each part of the roll shall be numbered, so far as practicable, consecutively with a separate series of numbers beginning with the number one". Rule 10 further deals with "publication of roll in draft." Rule 11 stipulates that publicity to the draft roll should be given, and notice should also be issued. The need to give publicity and notice is for the purpose of inviting any objections with regard to the names of the voters shown in the rolls. Rule 13 prescribes the Forms for claims and objections. Rule 14 deals with the manner of lodging claims and objections. Rules 15 and 16 deals with the procedure for dealing with the objections so received. Rule 17 empowers the rejection of the objections. Rule 22 deals with final publication of the roll. Rule 26 specifically deals with the correction of entries, and inclusion of names in the electoral rolls. 11. For the purpose of this case, it would be fruitful to quote Rule 26 of the Rules of 1960, in its entirety, which is as under : Rule 26 : Correction of entries and inclusion of names in electoral rolls.- (1) Every application under Section 22 or sub-section (10) of Section 23 shall be made in duplicate in such one of the Forms 6, 6A, 7, 8, 8A and 8B as may he appropriate. Provided that the statements in Forms 2, 2A and 3, from persons having service qualifications, received after the final publication of the electoral roll shall be deemed to be applications under Sections 22 and 23. (1A) Every such application as is referred to in sub-rule (1) shall be presented to the registration officer in such manner as the Election Commission may direct.
(1A) Every such application as is referred to in sub-rule (1) shall be presented to the registration officer in such manner as the Election Commission may direct. (3) The registration officer shall, immediately on receipt of such application, direct that one copy thereof be pasted in some conspicuous place in his office together with a notice inviting objections to such application within a period of seven days from the date of such posting. (4) The registration officer shall, as soon as may be after the expiry of the period specified in sub-rule (3) consider the application and objections thereto, if any, received by him and shall, if satisfied, direct the inclusion, deletion, correction or transposition of entries in the roll, as may be necessary. Provided that when an application is rejected by the registration officer, he shall record in writing a brief statement of his reasons for such rejections. A bare perusal of Rule 26 of the Rules of 1960 too clearly reveals that immediately on receipt of application for insertion of a name, the registration officer shall direct that one copy thereof be pasted in some conspicuous place in his office, together with a notice inviting objections to such application within a period of seven days from the date of such posting. Thus, the first stage that registration officer is required to take is to give publicity to such an application, and to grant seven days time to the people at large to raise any objections to the proposed insertion of name. Under Rule 26(4) of the Rules of 1960, immediately after seven days, the registration officer is required, as soon as may be, to consider the application and the objections, if any, received by him and shall, if satisfied, to include the name in the rolls. 12. Since the Act is silent on the procedure to be adopted, the procedure detailed under the Registration of Electors Rules, 1960, per force would have to be read into the Act. Another reason for reading the procedure prescribed by the Rules of 1960 into the Act is that in order to protect the democracy at the grass root level, the preparation of the electoral rolls is a highly responsible job.
Another reason for reading the procedure prescribed by the Rules of 1960 into the Act is that in order to protect the democracy at the grass root level, the preparation of the electoral rolls is a highly responsible job. In case the electoral rolls are prepared inefficiently, without following the procedures established by law, a grave possibility does exist that the elections might be rigged, and the electoral process may be derailed. Therefore, even if the Act is silent on the procedure for drawing up the electoral roll, the procedure established under the Rules of 1960 would necessarily have to be read into the Act, and in the Rules. For, even the Rules are silent about the procedure for drawing up the electoral rolls. 13. To say the least, the procedure established under the Rules of 1960 are time consuming as sufficient and reasonable time has to be given by the registration officer for calling the objections from the public at large. In the present case, admittedly the petitioners had filed their application on 25.1.2017. The election schedule was announced on 30 1.2017, that is, six days after the filing of the application. Thus, even the "seven days" required for calling for an objection was not over. The last date for calling of the nomination is 02.02.2017. Although it is true that under Section 10(2) of the Act, the Tahsildar would be justified in amending the electoral roll prior to the last date of filing of the nomination papers, but, the practical reality is that once the election schedule has been announced, once the entire administrative machinery is geared to hold the election in an impartial and objective manner, to expect the Tahsildar to amend the electoral roll just a date prior to the last date for calling of nomination may be a practical impossibility. 14. Moreover, there is no evidence that has been produced by the petitioners to show that their applications for deletion of their names from the electoral roll of Magadi Town has been dealt with. Thus, a distinctive possibility does exit that their names continued to be on the electoral roll of Magadi Town. As long their names exist in the electoral roll of the Magadi Town, obviously their names cannot be inserted in the electoral roll of the village.
Thus, a distinctive possibility does exit that their names continued to be on the electoral roll of Magadi Town. As long their names exist in the electoral roll of the Magadi Town, obviously their names cannot be inserted in the electoral roll of the village. For, a voter is not permitted to be registered as a voter at two different places simultaneously. 15. Of course, the learned counsel for the petitioner has relied on the case of C. Mahadevaiah (supra), in order to plead that this Court would be justified in directing the Tahsildar to immediately include the petitioners' name in the electoral roll of the village. However, in the said case, the learned Judge has merely directed the Tahsildar to include the names of the petitioners, therein, without revealing the factual matrix of the case, and without dealing with the elaborate procedure prescribed under the Rules of 1960. Therefore, the said order is sub-silentio on major issues, such as the elaborate procedure to be followed under the Rules of 1960. Thus, the case is not a binding precedent. Hence, the case of C. Mahadevaiah (supra) does not come to the rescue of the petitioner. For the reasons stated above, this Court does not find any merit in the present petitions. Therefore, these writ petitions are, hereby, dismissed.