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2020 DIGILAW 315 (RAJ)

Jay Prakash v. State of Rajasthan

2020-02-03

ARUN BHANSALI

body2020
JUDGMENT Arun Bhansali, J. - This writ petition has been filed by the petitioners, who are 105 in numbers, aggrieved by the electoral rolls for Panchayat Election, 2020 for Gram Panchayat Mahadev Nagar ('G.P., Mahadev Nagar), Panchayat Samiti Tinwari and electoral rolls of Gram Panchayat, Berdo-ka-Bas ('G.P., Berdo-ka-Bas') (Annex.2) published on 28/12/2019 and a direction has been sought to add the names of the petitioners in the electoral roll of G.P.Berdo-kaBas (Chak Rataniya) again and permit the petitioners to cast their vote at G.P., Berdo-ka-Bas for Panchayat Elections, 2020. 2. It is inter alia indicated in the writ petition that the draft electoral rolls for the Panchayat Elections, 2020 was published by the respondents, wherein, names of the petitioners were indicated in electoral rolls of G.P., Mahadev Nagar (Annex.1), Panchayat Samiti, Tinwari, wherein, the main village is Daukiyo-ki-Dhani. It is claimed that as the petitioners are residents of village Berdo-kaBas (Chak Rataniya-ki-Dhani), Osian, the petitioners were surprised by the said inclusion of their names in G.P., Mahadev Nagar instead of Berdo-ka-Bas, where the petitioners' names were earlier recorded and in fact petitioner no.2 is Sarpanch of said G.P., Berdo-ka-Bas. The petitioners made inquiries when they came to know that an innocuous application dated 22/11/2019 (Annex.5) was made by one Bhoma Ram to Tehsildar, Tinwari inter alia simply indicating that names of certain residents of Daukiyon-ki-Dhani have been wrongly included in village Berdoka-Bas (Chak Rataniya-ki-Dhani), therefore, the required correction be made and based on which action was taken, allegations whereof are that the same was wholly malafide and the names of petitioners have been wrongly included in G.P., Mahadev Nagar by deleting the same from G.P., Berdo-ka-Bas. 3. It is indicated that the names of the petitioners for the Panchayat Elections, 2014 were indicated in G.P., Berdo-ka-Bas and in this regard voter list of the year 2014 has been placed on record as Annex.12. On publication of draft electoral roll, the petitioners approached the Collector/District Electoral Officer raising their grievance pertaining to the inclusion/exclusion of their names in the electoral roll. It was inter alia indicated that the petitioners were residents of Ward No.5 of G.P., Berdo-ka-Bas, they are in possession of Aadhar Cards, Bonafide Resident Certificates, Ration Cards, Voter ID Cards and Bhamashah Cards, which indicate their place of residence as Berdo-ka-Bas and, therefore, as the exclusion from G.P., Berdo-ka-Bas has been made malafidely, the same be rectified. It was inter alia indicated that the petitioners were residents of Ward No.5 of G.P., Berdo-ka-Bas, they are in possession of Aadhar Cards, Bonafide Resident Certificates, Ration Cards, Voter ID Cards and Bhamashah Cards, which indicate their place of residence as Berdo-ka-Bas and, therefore, as the exclusion from G.P., Berdo-ka-Bas has been made malafidely, the same be rectified. Representation in this regard was also made to the S.D.O. Osian, the concerned Electoral Registration Officer. The certificate (Annex.9) was also issued by the Sarpanch, G.P., Mahadev Nagar indicating the status of the petitioners that they were not part of G.P., Mahadev Nagar. 4. Along with the petition, the petitioners have placed on record Annex.3, whereby, copies of Aadhar Cards, Bonafide Resident Certificates, Ration Cards and Voter ID Cards of the petitioners have been annexed. Vide Annex.4 Electricity Bills issued by the A.En., Osian have been produced to indicate that the petitioners are part of Tehsil, Osian and not Tehsil Tinwari, wherein, G.P., Mahadev Nagar is situated. Various submissions have been made in the petition as well as during the course of oral submissions before this Court seeking to allege malafides on the part of respondents in unilaterally acting on an innocuous representation and transferring the names of petitioners from one G.P. to another G.P., in which G.P., petitioners have nothing to do. 5. Vehement submissions were made with reference to the large number of documents, which have come on record by way of reply and affidavits on part of the respondents to indicate that the action cannot be called bonafide inasmuch targeting the petitioners lists were produced/sprang up, based on which the action has been taken without verifying the details thereof and, therefore, the action of the respondents in this regard deserves to be quashed and set aside. 6. By order dated 10/1/2020, the District Collector was directed to look into the issues raised by the petitioners. 7. On 16/1/2020, on noticing that the matter was directed to be considered by the Electoral Registration Officer, Osian under the directions of District Collector, on 17/1/2020, the said authority was directed to take into consideration the documents produced/to be produced by the petitioners and pass speaking order on the objections raised by the petitioners pertaining to their inclusion in electoral rolls of G.P., Mahadev Nagar. 8. The Electoral Registration Officer vide Annex. R/1 passed the following nature orders for all the applicants: 9. 8. The Electoral Registration Officer vide Annex. R/1 passed the following nature orders for all the applicants: 9. The Electoral Registration Officer came to the conclusion, based on the reports received that the petitioners were residents of Ward No. 9, G.P., Mahadev Nagar, where they were physically residing and that all the documents relied on by them have been prepared based on the electoral rolls, wherein, their names were included in G.P., Berdo-ka-Bas and as they were not residents of Berdo-ka-Bas, their representations were rejected. 10. Learned counsel for the petitioners made vehement submissions that the residence of the petitioners is in Berdo-kaBas and inclusion of their names in G.P. Mahadev Nagar is wholly incorrect. Further submissions were made that despite the direction given by this Court to the Electoral Registration Officer to take into consideration the documents produced by the petitioners, which unfailingly indicates their place of residence at Berdo-ka-Bas, the Election Registration Officer has also passed a slipshod order and has not dealt with the same and the reports relied on are baseless, therefore, the orders impugned/action of the respondents in including the names of the petitioners in electoral roll of G.P., Mahadev Nagar deserves to be quashed and set aside. 11. Learned AAG appearing for the respondents vehemently defended the action of the respondents. It was submitted that once based on the complaint made by Bhoma Ram, investigation was done by the respondents qua the names of the petitioners in the electoral roll of G.P., Berdo-ka-Bas and it was revealed that the petitioners were in fact residents of Daukiyo-ki-Dhani, which is part of G.P., Mahadev Nagar and the claim made by the petitioners that they were residents of Chak Rataniya-ki-Dhani is baseless, their names after thorough investigation were included in the draft electoral roll of G.P., Mahadev Nagar. 12. Submissions have been made that the order passed by the Electoral Registration Officer is open to appeal under Rule 21 of the Rajasthan Panchayati Raj (Election) Rules, 1994 ('the Rules, 1994') before the Collector, therefore, on account of availability of alternative remedy, the petition deserves to be dismissed. 13. Further submissions have been made that the revenue record produced as Annex.R/4 pertaining to petitioners clearly depicts that their lands, residential houses and tube wells are all situated at Daukiyo-ki-Dhani and the claim made regarding their residences at Berdo-ka-Bas is totally baseless. 14. 13. Further submissions have been made that the revenue record produced as Annex.R/4 pertaining to petitioners clearly depicts that their lands, residential houses and tube wells are all situated at Daukiyo-ki-Dhani and the claim made regarding their residences at Berdo-ka-Bas is totally baseless. 14. Further submissions were made that merely because the documents sought to be relied on by the petitioners i.e. Aadhar Cards, Bonafide Resident Certificates, Ration Cards and Voter ID cards indicate their residences at Berdo-ka-Bas cannot change the factual position, whereby, none of the petitioners are factually residents of Berdo-ka-Bas and are residents of Mahadev Nagar, therefore, the petition deserves to be dismissed. 15. Submissions were also made that the doubts sought to be raised by the petitioners pertaining to the procedure adopted by the respondents are totally baseless inasmuch as the respondents have acted in accordance with law and only on coming to the conclusion that the petitioners are residents of Daukiyo-ki-Dhani and not Berdo-ka-Bas, the requisite has been done, which cannot be faulted. It is submitted that to address the doubts raised, the respondents have placed on record the revenue records (Annex.AA/2) of rest of the persons, who were recorded in the electoral rolls of Berdo-ka-Bas and their revenue records clearly indicate that their lands etc were situated in Berdo-ka-Bas (Chak Rataniya) and in contrast to the case of the petitioners, wherein, the revenue records indicate their residence in Daukiyo-ki-Dhani, Mahadev Nagqar, therefore, also the writ petition deserves to be dismissed. 16. Learned counsel for the petitioners, on account of reliance placed by the respondents on the revenue records Annex.R/4 and Annex.AA/2 submitted that merely because the agricultural land are situated at Daukiyo-ki-Dhani cannot make the petitioners as residents of said place and as the entire material placed clearly indicates residence of the petitioners in Berdo-ka-Bas, the plea raised in this regard deserves to be rejected. 17. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 18. The provisions of Section 18(2) of the Rajasthan Panchayati Raj Act, 1994 ('the Act, 1994') deals with the eligibility to be registered in the electoral rolls for a ward or a constituency, which reads as under: "18. Electors and Electoral Rolls.- (1) ...... 18. The provisions of Section 18(2) of the Rajasthan Panchayati Raj Act, 1994 ('the Act, 1994') deals with the eligibility to be registered in the electoral rolls for a ward or a constituency, which reads as under: "18. Electors and Electoral Rolls.- (1) ...... (2) Subject to the provisions of Sub-sec.(3) to (6), every person who- (a) is not less than eighteen years of age on the qualifying date, and (b) is ordinarily resident in a ward or constituency of the Panchayati Raj Institution concerned. Shall be entitled to be registered in the electoral roll for the ward or constituency." 19. A perusal of the provision reveals that for registration in the electoral roll a person must be ordinarily resident in a ward or constituency of the Panchayati Raj Institution concerned. The said requirement is also fortified from various rules including Rule 16, 20(1)(c) etc. of the Rules, 1994. 20. The entire dispute in the present petition pertains to inclusion/exclusion of petitioners' name from G.P., Berdo-ka-Bas to G.P., Mahadev Nagar. While the petitioners insist that they are entitled to remain as part of electoral rolls of G.P.Berdo-ka-Bas, the respondents have come to the conclusion that their inclusion in G.P., Berdo-ka-Bas was incorrect and their names rightly pertain to G.P., Mahadev Nagar. 21. Various submissions which have been made by the petitioners and defended by the respondents in relation to the procedure adopted by the respondents in identifying the names of the petitioners and/or picking them up for shifting from one G.P. to another G.P., while the petitioners allege the action as malafide, the respondents defend the same being in accordance with law. 22. Having gone through the material produced on record, this Court is firmly of the opinion that though the complaint made may be outcome of political rivalry, the procedure adopted by the authorities cannot be termed as malafide. 23. However, the fundamental issue of place of petitioners' residence, which is the basis for inclusion/exclusion of the names in the electoral rolls, remains in dipsute. 24. 23. However, the fundamental issue of place of petitioners' residence, which is the basis for inclusion/exclusion of the names in the electoral rolls, remains in dipsute. 24. Irrespective of various pleas raised by the petitioners pertaining to their residence, under the directions of this Court the Electoral Registration Officer has passed orders Annex.R/1 pertaining to the petitioners, one such order has been quoted hereinbefore, wherein, taking into consideration the material, though summarily, the authority has come to the conclusion that the inclusion in the electoral roll of G.P., Mahadev Nagar is justified and the same does not call for any change and has rejected the representations made by the petitioners. 25. While the petitioners relied on the documents filed as Annex.3 i.e. Aadhar Cards, Bonafide Resident Certificates, Ration Cards, Voter ID Cards and Bhamashah Cards and Annex.4 - Electricity Bills for inclusion in G.P., Berdo-ka-Bas, the respondents have relied on revenue record (Annex.R/4) for negating the plea raised by the petitioners. The petitioners, though have not denied the existence of revenue records (Annex.R/4) and their authenticity including the entries made therein, wherein, the lands have been indicated in Daukiyo-ki-Dhani, which admittedly forms part of G.P., Mahadev Nagar, submissions were made that same are irrelevant as what is relevant is place of residence and petitioners' place of residence is established by the documents produced by the petitioners as Annex.3 and Annex.4, which material is disputed by the respondents as has been done by the Electoral Registration Officer with the insistence that their residence also are situated as per the revenue records within Daukiyo-ki-Dhani and not at Berdo-ka-Bas. 26. As the statutory requirement for inclusion in the electoral roll is the place of residence, the location of the agricultural land etc. by itself cannot be a sufficient proof to come to a conclusion that the petitioners are residents of G.P., Mahadev Nagar, however, there is no conclusive material available on record to establish the location of the residence of the petitioners, as the material produced as Annex.3 and Annex.4 by itself cannot be taken as conclusive proof of place of residence on account of various reports of authorities involved with the electoral process i.e. B.L.O., Supervisor, Inspector (Land Records), Gram Vikas Adhikari etc., which indicates the place of residence of the petitioners as Daukiyo-ki-Dhani. 27. 27. The said conflicting status of the record, puts the issue of ordinary residence of the petitioners in the realm of highly disputed question of fact and, therefore, it is not possible for this Court in exercise of its jurisdiction under Article 226 of the Constitution of India, to come to a particular conclusion pertaining to the factual validity of inclusion/exclusion of the petitioners' names in the electoral rolls. Therefore, the petitioners are required to invoke the statutory alternative remedy available under the Rules of 1994. The petitioners would be free to file requisite appeals before the Collector under Rule 21 of the Rules, 1994 and the Collector is directed to ensure that an independent inquiry is held, which should not involve the authorities which have already participated in the process of determination of petitioners' residence, to report about the place of residence of petitioners as to whether the same fall within Berdo-ka-Bas or Daukiyo-ki-Dhani and, thereafter, he would pass order on the appeals to be filed/if filed by the petitioners. 28. In view of the above discussion, the writ petition filed by the petitioners is disposed of. The petitioners may approach the Collector by way of appeal under Rule 21 of the Rules, 1994 and in case such appeals are filed, the Collector would take appropriate steps including the appointment of appropriate authority for physical verification of place of residence of the petitioners, as directed hereinbefore, after providing opportunity of hearing to the parties, pass appropriate orders in accordance with law. The Collector would deal with the appeals with utmost expedition to ensure that the petitioners are not deprived of their right of franchise at appropriate place in the ensuing elections of Panchayat Raj Institution.