CWP/6408/2020 of BHAVANA Vs HP STATE ELECTION COMMISSIONER AND ORS on 31 December 2020

IN THE HIGH COURT OF HIMACHAL PRADESH,SHIMLA.

CWP No. 6408 of 2020

Decided on: 31.12.2020.

Bhavana…Petitioner

Versus

State of H.P. & Ors. …Respondents

_____________________________________________________________

Coram:

Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.Hon’ble Ms. Justice Jyotsna Rewal Dua, Judge.

Whether approved for reporting?[ 1][ Yes. ]

For the Petitioner : Mr. R. L. Chaudhary, Advocate.

For the Respondents : Mr. Ashok Sharma, A.G. with Mr. Vinod Thakur, Mr. Shiv Pal Manhans, Addl. A.Gs., Mr. Bhupinder Thakur, Ms. Seema Sharma and Mr. Yudhvir Singh Thakur, Dy. A.Gs., for the respondents.

(Through video conferencing)

Tarlok Singh Chauhan, Judge (Oral)

Aggrieved by the non-inclusion of her name inthe Voter List, the petitioner has filed the instant petition forthe grant of following substantive reliefs:-

(i) That writ of mandamus may kindly be issued, directingthe respondents to include the name of the petitioner in theVoter List of Panchayat Dhar Kandru, Tehsil Theog, DistrictShimla, H.P., so as to enable the petitioner to cast her voteand contest the election of BDC Member from GramPanchayat Dhar Kandru and Gram Panchayat Kelvi, Tehsil 1 Whether reporters of the local papers may be allowed to see the judgment? yes Theog, District Shimla, H.P., since the petitioner ispermanent resident of the aforesaid Gram Panchayat andshe is casting her vote for the Parliament, Vidhan Sabha andGram Panchayat elections since long as per the earlierrecord.

(ii) That writ of mandamus may very kindly be issued,directing the respondents to take action as warranted underthe law against the erring officers/officials for wrongly andillegally deleting the name of the petitioner from the VoterList.

2. It is well settled proposition of law that inclusionor exclusion of name in the Voter List cannot be termed asan extraordinary circumstance warranting interference ofthe High Court in exercise of the jurisdiction under Article226 of the Constitution. However, it is always open to aperson whose name is not included in the Voter List to availthe benefit by filing election petition as the authoritiesconstituted have wide powers to cancel, confirm andamend the election and it can also direct to hold freshelection, in case, the election is eventually set aside.

3. No doubt, in extraordinary and exceptionalcircumstances, the High Court can entertain writ petitionunder Article 226 of the Constitution where the order isultra vires or nullity and/or ex facie without jurisdiction. Theexclusion or inclusion of name in the Voter List cannot betermed as extraordinary circumstance warranting interference by the Court under Article 226 of theConstitution and such question at best are to be decided inelection petition.

4. In addition to the above, a specific and time bound remedy is provided to an aggrieved person underRule 24 of the Himachal Pradesh Panchayati Raj (Elections)Rules, 1994, when a person name is not included in theelectoral roll.

5. Rule 24 of the Himachal Pradesh Panchayati Raj (Elections) Rules, 1994, reads as under:-

24. Inclusion of names in the electoral roll, finallypublished.- (1) Any person, whose name is not included inthe electoral roll shall make an application, in Form-2 (induplicate), to the District Election Officer (Panchayats) forinclusion of his name in that electoral roll, and suchapplication shall be accompanied by a fee of rupees twoto be paid in cash against receipt.

(2) District Election Officer (Panchayats) shallimmediately on receipt of application under sub-rule (1)direct that one copy thereof be pasted in someconspicuous place in his office together with a noticeinviting objections to such application within a period offour days from the date of such pasting.

(3) The District Election Officer (Panchayats) shall as maybe, after the expiry of the period specified in the noticeunder sub-rule (2), consider the objections, if any,received by him and shall, if satisfied that the applicantsentitled to be registered in the electoral roll, direct suchname to be included therein within a period of 3 days:

Provided that if the applicant whose name is ordered tobe included is already registered in the electoral roll ofany other constituency of the same Gram Sabha oranother Gram Sabha or a Municipality, such a name shallbe deleted from that electoral roll:

Provided further that an application under this rule at anytime after publication of the election programme underrule 32 shall be made to the District Election Officer(Panchayats) not later than 9 days before the last datefixed for the filing of nomination papers:

Provided further that no amendment or transposition ordeletion of any entry shall be made on or after the lastdate for making nomination till the election process isover.

(4) Where an application made under sub-rule (1), isrejected, an appeal shall be within a period of ten daysfrom the date of rejection of the application for theinclusion of names to the State Election Commission,whose decision shall be final.(5) Every appeal under sub-rule (4) shall be accompanied by a fee of twenty rupees tobe paid in cash against receipts.

6. However, learned counsel for the petitionerwould argue that since the provisional electoral rolls wereneither published nor notified or kept in the Panchayat Gharas per the Rules, therefore, she had no occasion or chanceto avail of the remedy as provided under Rule 24.

7. These allegations of the petitioner arevehemently opposed by the learned Advocate General, who on the basis of instructions, states that the draft Voter Listin the instant case was published on 03.10.2020 and thesame was kept for inspection in the Panchayat Ghar from05.10.2020 to 14.10.2020 and after considering all theformalities like objections etc., the same was finallypublished on 05.11.2020.

8. Confronted with this, the learned counsel for thepetitioner would still argue that no such exercise as statedby the learned Advocate General was ever undertaken bythe Department, but we find no merit in the said contentionbecause admittedly 30 new voters find their entry in thefinal list of voter.

9. Sections 35 and 114(e) of the Evidence Actdeclare that there was always presumption of regularity ofan official act. Of course, such presumption is rebuttablepresumption. (See: Jagjit Singh vs. State of Haryana(2006) 11 SCC 1).

10. The wiseprinciple of presumption which is alsorecognised by the legislature, is that judicial and officialacts are regularly performed. The presumption is placed onthe legal maxim omnia praesumuntur rite it doweeprobetur in contrarium solemniter esse acta i.e. all the acts

are presumed to have been done rightly and regularly,applies. When acts are of official nature and went throughthe process of scrutiny by official persons, a presumptionarises that the said acts have regularly been performed.The learned counsel for the petitioner hasmiserably failed to rebut the presumption.

11. Lastly and more importantly, it is also axiomaticthat normally the High Court exercising jurisdiction underArticle 226 of the Constitution of India should not interferewith the process of election once the same has alreadycommenced.

12. Reference in this regard can conveniently bemade to the judgments of the Hon’ble Supreme Court inNanhoo Mal and others vs. Hiramal & Ors., (1976) 3SCC 211, Shri Sant Sadguru Janardan Swami vs.State of Maharashtra and Ors, 2001 (8) SCC 509 andElection Commission of India vs. Ashok Kumar &Ors., 2000 (8) SCC 216.

13. In the instant case, the election process hasalready begun and final voter list has also been published,therefore, entertaining this petition at this stage would amount to obstructing the election process, which is notpermissible.

14. It is more than settled that Court in exercise ofits writ jurisdiction can interfere in the matters relating toelection only if it subserves the progress of election andfacilitates the completion thereof.

15. The present petition filed after commencementof the election process, that too, with a view to stallelection, therefore, cannot be entertained, when thepetitioner has an alternate efficacious remedy of filing anelection petition under Rules.

16. In view of the aforesaid discussion, we find nomerit in this petition and the same is accordingly dismissed.Pending application(s), if any, also stands disposed of.Parties are left to bear their own costs.

(Tarlok Singh Chauhan) Judge

31[st] December, 2020

(sanjeev)

(Jyotsna Rewal Dua) Judge