Anil Kumar, S/o. Sh. Devendra Kumar v. State of Rajasthan
2022-02-21
DINESH MEHTA
body2022
DigiLaw.ai
ORDER : Dinesh Mehta, J. 1. By way of the present writ petition, the petitioner has challenged the order dated 27.01.2022, passed by the Project officer-cum-Chief Engineer, Water Resources North, Hanumangarh, District Hanumangarh-the appellate authority. 2. The precise facts leading to filing of the present writ petition are that on 20.12.2021, a provisional voter list in relation to election of Water Users' Association of BK-80, Tehsildar Sadulshahar, District Sriganganagar was published by the respondent No. 3-The Electoral Registration officer-cum-Executive Engineer, Water Resources Division-I, Hanumangarh, District Hanumangarh and objections were invited. 3. On publication of the aforesaid provisional voter list, the petitioner lodged his objections on 24.12.2021, which were returned back, as the same were not in prescribed format. 4. Thereafter on 03.01.2022, the petitioner filed a petition in prescribed format (Form No.2). 5. Since, the respondent No. 3 did not consider and decide petitioner's objection, the petitioner approached the appellate authority-The Project officer Cum Chief Engineer, Water Resources North, Hanumangarh (respondent No. 2), who rejected petitioner's objection vide order dated 27.01.2022. 6. Mr. H.S. Sidhu, learned counsel for the petitioner argued that the respondent No. 3 (Electoral Registration officer) was required to decide petitioner's objection and on his failure to discharge his duties, the petitioner was constrained to approach the appellate authority, who has cursorily rejected those objections while completely ignoring the statutory provisions. 7. Challenging the order passed by the appellate authority, Mr. Sidhu, learned counsel for the petitioner argued that the various persons mentioned in the voter list were not even the residents/landholders of Chak No. 25 MJD and 27 MJD forming part of Water Users' Association of BK-80. 8. It was also argued that the Electoral Registration officer (respondent No. 3) was required to adhere to section 4 (2) and Rule 4(2) of the Rajasthan Farmers' Participation in Management of Irrigation Systems Act, 2000 (hereinafter referred to as "the Act of 2000") and the Rajasthan Farmers' Participation in Management of Irrigation Systems Rules, 2002 (hereinafter referred to as the Rules of 2002 respectively. 9. Learned counsel argued that Rule 6 of the Rules of 2002 enjoins upon the Electoral Registration officer to issue a notice to the concerned Tehsildar with a corresponding duty cast upon the Tehsildar to furnish a report within a period of 15 days of the receipt of the notice. 10.
9. Learned counsel argued that Rule 6 of the Rules of 2002 enjoins upon the Electoral Registration officer to issue a notice to the concerned Tehsildar with a corresponding duty cast upon the Tehsildar to furnish a report within a period of 15 days of the receipt of the notice. 10. He pointed out that the Electoral Registration officer has failed to adhere to the mandate of Rule 6, and argued that his action of finalising the voter list of the concerned Water User's Association is clearly contrary to law and the same deserves to be quashed and set aside. 11. Learned counsel argued that the respondent No. 3 has firstly not decided petitioner's objection whereafter the respondent No. 2 also rejected petitioner's appeal, without properly considering the facts and objections. 12. Ms. Abhilasha Bora, learned counsel for the respondent-State on the other hand argued that the respondent No. 3-the Electoral Registration officer so also the respondent No. 2-the appellate authority have thoroughly examined the record and after ensuring that all the persons mentioned in the provisional voter list are the landholders of the concerned Chak, have finalised the same. 13. In relation to petitioner's arguments that neither the Tehsildar nor his report was summoned, learned counsel for the respondent-State argued that maybe a notice was not issued to the Tehsildar and his report was also not solicited but such argument is not available to the petitioner, who himself has failed to comply with the provision mentioned in Rule 5(6) of the Rules of 2002, which requires that a copy of the objection shall be left in the office of the Tehsildar concerned. 14. She argued that since copy of the objection was not dropped in the office of the Tehsildar, petitioner's objection was not competent and, therefore, he cannot raise a grievance of non-adherence of the rules, particularly when he himself was at fault. 15. Ms. Bora further argued that in view of second proviso to Rule 6 of the Rules of 2002, no notice was required to be issued to the Tehsildar. 16. Heard learned counsel for the parties and perused the material available on record. 17. Before adverting to the arguments advanced by the rival parties, it would be appropriate to reproduce the relevant Rules which are as follows: "4.
16. Heard learned counsel for the parties and perused the material available on record. 17. Before adverting to the arguments advanced by the rival parties, it would be appropriate to reproduce the relevant Rules which are as follows: "4. Preparation of voter list.-(1) The Tehsildar of the area shall prepare list of Water Users who are [land owners and their spouses] and renew it every year during the month of January on the basis of record and land rights and sent it to the Project Authority as well as to the Water Users' Association concerned by 31' of January. On the basis of the list so prepared the Electoral Registration officer shall prepare or cause to be prepared territorial constituency wise members list consisting of those [land owners and their spouses] who have been shown as adults in the list prepared by the Tehsildar of the area. (2) The list prepared under sub-rule (1) shall be displayed on the notice board of the office of the Project Authority concerned Gram Panchayat and Water Users' Association along with a notice inviting objections and fixing date and time by which objection shall be entertained. 5. Claims and objection.- (1) .... (2) ..... (3) .... (4) .... (5) .... (6) No claim or objection shall be entertained unless a copy of such claim or objection has been left in the office of the Tehsildar concerned. 6.
5. Claims and objection.- (1) .... (2) ..... (3) .... (4) .... (5) .... (6) No claim or objection shall be entertained unless a copy of such claim or objection has been left in the office of the Tehsildar concerned. 6. Disposal of claims and objection.-(1) The Electoral Registration officer before deciding whether or not to allow the claim or objection cause notice to be served- (a) In the case of a claim on the claimant; (b) In the case of an objector to a particular or particulars in an entry the objector and on the person to the inclusion of whose name the objection relates; (c) In the case of an objection to a particulars or particulars the objector; and (d) In all cases to the concerned Tehsildar who shall file his report within 15 days of the receipt of the notice: Provided that any claim or objection which is not lodged within period, or in the Form and manner as prescribed, shall be rejected: Provided Further that it shall not be necessary to serve any such notice where the Electoral Registration officer on being satisfied as to the validity of the claim or objection and decides to allow it without further inquiry: Provided further also that a list containing the names and addresses of the persons applying for inclusion of their names shall be exhibited on the notice board of the office of the Electoral Registration officer, Project Authority, Water Users' Association and Gram Panchayat, for 3 clear days before making an order on the claim. (2) A notice under sub rule (1) shall be given either personally or by registered post or by affixing it to the persons' residence or last known residency with in the constituency or left in the office of the Tehsildar in case of clause (d) of sub-rule (1). (3) The Electoral Registration officer shall hold a summary inquiry into every claim or objection in respect of which notice has been given under sub-rule (1) and shall consider the report of the Tehsildar, if any, and record his decision thereon. (4) At the hearing, the claimant or as the case may be the objector and the person objected to and any other person who, in the opinion of the Electoral Registration officer is likely to be of assistance to him, shall be entitled to appear and be heard.
(4) At the hearing, the claimant or as the case may be the objector and the person objected to and any other person who, in the opinion of the Electoral Registration officer is likely to be of assistance to him, shall be entitled to appear and be heard. (5) The Electoral Registration officer may in his discretion: (a) require any claimant, objector or person objected to, to appear in person before him. (b) require that the evidence tendered by any person shall be given on oath and administer an oath for the purpose or may require the evidence be tendered by filing affidavit duly attested. (6) No person shall be represented by any legal practitioner in any proceeding under this rule. The Electoral Registration officer shall also correct any clerical or printing errors which he may discover in the roll." 18. A perusal of sub-rule (6) of Rule 5 of the Rules of 2002, clearly provides that claim or objection filed by an objector shall not be entertained unless a copy of the claim/objection has been left in the office of the Tehsildar concerned. 19. True it is, that the petitioner has not mentioned the fact as to whether a copy of the objection has been dropped in the office of the Tehsildar or not. But, since the appellate authority has decided the objections on merit, this court is not inclined to go into this argument, particularly when the objections have been filed in prescribed format (Form No. 2) and further because it was the duty of the Electoral Registration officer also to send the notice to the Tehsildar as provided under Clause (d) of the Rule 6(1) of the Rules of 2002. 20. A simple reading of the Clause (d) reproduced hereinabove shows that in all cases of objection, a notice should be issued to the Tehsildar concerned, who shall be required to file a report within a period of 15 days. 21. Concededly, no notice was issued to the Tehsildar and thus, there was no report of the Tehsildar, which could be taken into account by the respondent No. 3. 22. Arguments of Ms. Bora that in view of the second proviso to Rule 6(1), no notice was required to be given to the Tehsildar, is untenable.
21. Concededly, no notice was issued to the Tehsildar and thus, there was no report of the Tehsildar, which could be taken into account by the respondent No. 3. 22. Arguments of Ms. Bora that in view of the second proviso to Rule 6(1), no notice was required to be given to the Tehsildar, is untenable. A perusal of such proviso, would unravel that a notice is not required, in case Electoral Registration officer is inclined to 'allow' the objection without any further inquiry. 23. In other cases, obviously, when the objections are to be rejected, notice to Tehsildar and its report become mandatory. 24. If the interpretation sought to be given by Ms. Bora were to be accepted then, not only sub-clause (d) of Rule 6(1), even the first proviso would become redundant or otiose. 25. This Court is of the considered opinion that the respondent No. 3 was required to issue notice of objection filed by the petitioner to the Tehsildar concerned and summon his report. Tehsildar or revenue authorities are best person to tell as to whether a particular person holds the land in a particular area. 26. Since, the mandate of Rules of 2002 has not been followed as found hereinabove, this Court is persuaded to accept the present writ petition. 27. The writ petition is thus, allowed. 28. The impugned order dated 27.01.2022, passed by the respondent No. 2 so also final voter list in the instant case is hereby quashed and set aside. 29. It will be required of the petitioner to supply copy of the objection dated 03.01.2022 to the concerned Tehsildar within three days from today. 30. The respondent No. 3 shall also issue notice to the Tehsildar and summon his report. 31. Having regard to the facts that the issue in question relates to election of Water Users' Association, the concerned Tehsildar is directed to send his report as early as possible preferably within a period of ten days of receiving the notice/copy of the objection. 32. On receipt of the report from the concerned Tehsildar, the Electoral Registration officer shall decide petitioner's objection afresh in accordance with law by passing a reasoned order under intimation to the petitioner. 33. The stay petition also stands disposed of accordingly.