JUDGMENT B.S. Chauhan, J.
1. This writ petition has been filed for quashing the order dated 27.04.2005(Annex.8) passed by the respondent No. 3 by which the names of the petitioners as well as their two sons; and one daughter have been deleted from the provisional voter list: prepared for the purpose of forthcoming Panchayat Raj elections.
2. The facts and circumstances giving rise to this case are that petitioners, claim to be resident of village Bhanjanpur, Gram: Panchayat Payagpur Ramgarhwa, Block Manda, Tehsil Meja, District Allahabad. There, they have a, house, immovable properties and their family members reside therein. Earlier names of the petitioners as well as their children existed in the voter list and they had exercised the right to vote in the last elections for the Parliaments well as the State Assembly. Their names appeared in the voter list prepared for Gram Panchayat election also. The elector roll was published for the purposes of, holding the elections of Gram Panchayat on 01.03.2005. The name of petitioners as well as their children appeared in the voter list at Serial Nos. 964 963, 964, 965 and 966. The election programme was notified by the Election Commission, according to which a schedule was fixed for preparing the final electoral roll It provided that any objection, for inclusion or exclusion of the name of any person in the said provisional voter list would, be entertained from 1st March, 2005 to 15th March, 2005. objections, if any, were to be disposed of from 16th March, 2005 to 1st April, 2005. According to the petitioners, no objection had been filed for exclusion of their names from the provisional voter list during the said stipulated period Shri Surya Bali Bind, the respodent No. 5 impleaded by the Court on the application moved by him, filed objections for exclusion of the names of the petitioners and their three children on 13.03.2005 No notice had ever been served Upon any of the petitioners or their children opportunity of hearing had ever been given to them. When the petitioner No. 1 came to know that certain proceedings were pending for exclusion of his name, No. name he filed an affidavit on 23.03.2005 pointing out that the objection filed fair exclusion of their names was not based on correct; factual position.
Subsequently, petitioners did not receive, any notice of any information.However, vide impugned order dated 27.04.2005, names of the petitioners and their three children have been excluded from the voter list. Hence, the present petition,
3. Shri Radha Kant Ojha, learned counsel for the petitioners has subrnittieel; that neither the statutory provisions provided under the U.P. Panchayat Raj Act, 1947 (hereinafter called 'the Act 1947') nor the U.P. Panchayat Raj (Registration of Electors) Rules, 1994 (hereinafter called 'the Rules 1994') havej been followed. The respondent authority had no competence to entertain the application/objection for exclusion of names of the petitioners and their children after 1st April, 2005. No notice had ever been issued, to the petitioners or their children. Therefore, the order impugned is without jurisdiction and, is nullity.
4. On the contrary, Shri M.D. Singh Shekhar", learned counsel appearing for respondent No. 5, Shri Surya Bali Bind has submitted that on 10th May; 2005, certain guidelines have been issued by the; State Election Commission by which the Authority concerned had the competence to entertain objections even after 01.04.2005. Petitioners had been served notices by U.P.C. (Under Postal Certificate) and also by Dasti service, Notice was sent to the house of petitioner No. 1. His wife refused to accept the same, therefore, it was affixed at his house, Law does not provide for giving separate notices to, the voters if they are members of the same family whose names are to be deleted. No fault, can' be found with the procedure adopted by the authority. Petition is liable to be dismissed.
5. Vide order dated 19th May,2005, we had directed the Authority concerned, the learned Sub Divisional Magistrate, Meja to remain present before this Court along with the records and in compliance thereof, Shri Anjani Kufnari Singh, Sub Divisional Magistrate, Meja is present along with all Original records. We have heard him in person as well as Shri C.K. Rat, learned Standing Counsel for the State and Shri P.N. Rai, learned counsel 'for the State Election Commission.
6. The procedure in this regard is prescribed under the Act, 1947 and Rules, 1994. Section 9 of the Act, 1947 deals with the procedure 'for preparing the electoral roll for each territorial constituency. Sub-section (7) thereof provides that every person is entitled to be registered as a voter only in one constituency. Sub-section (8) provides that where the State Election Commission 15 satisfied after making certain enquiry as it may deem fit, whether on an application made to it or on its own motion, that any entry in the electoral roll should be corrected or deleted or that the name of any person entitled to get registered should be added in the electoral roll it shall, subject to the provisions of this Act and rules and orders made there under, correct, delete of add the entry, as the case may be. However, the second proviso thereto provides that no deletion or correction of any entry in respect of any person affecting his interest adversely without giving him reasonable opportunity of being heard in respect of the action proposed to be taken in relation to him. Rules, 1994 provide for a detailed procedure. Rule 8 thereof provides for publication of rolls in draft giving wide publicity in the Panchayat area and the copy thereof shall be made available for inspection by the people at large. Rule 9 provides for filing claims for inclusion and exclusion of the names of any person, The Objections so filed have to be registered and proper entries are to be made as required under Rule 10. However, Rule 11 reads as under.-
11. Period for lodging claims and objections. - Every application referred to in Rule 9 . or in Rule 10 shall be made within a period of seven days from date of publication of the roll in draft under Rule 8.
7. Rules 13 and 14 provide" for procedure for entertaining objections and Rule 15 mandatorily requires for service of notice after being satisfied, prima facie, regarding the genuineness of the objections for inclusion or exclusion of the names. The notice is to be served upon the person along with a copy of the objection and notice is required to be served under sub-rule (3) personally and in default or personal service, shall be served by affixing a copy thereof at the residence. Rule 16 further provides for enquiry into Claims and objections. It lays down a procedure for leading the evidence on the issue, Rule 17 provides that any person included inadvertently may be deleted, from the electoral roll. Rule 19 provides for final publication of electoral roll.
8. In the instant case, it is admitted by Shri. P.N. Rai, learned counsel appearing for the State Election Commission that the draft roll had been prepared on 01.01.2005 and was published on 01.03.2005. There is no dispute that it was published on 1st March, 2005. 'In view of the statutory provisions; contained in Rule 11, objections could be filed only up to 8th March, 2005. We fail to understand as under what circumstances, the Election Commissioner could fix a date for filing objections up to 01.04.2005. No explanation could be furnished by the learned counsel appearing for the respondents as under what circumstances and by what authority of law, any objection could be entertained for inclusion or exclusion of the names in the voter list after 8th March, 2005 and even if the direction has been issued by the Election Commission in contravention of the Statutory Rules, that cannot be given effect to.
9. There is no scope of argument that the executive instructions, can be in issued in contravention of the statutory provisions. The issue as to whether executive instructions can overnde the statutory Rules is no-more res Integra.'A Constitution Bench of the Hon'ble Supreme Court, in B.N. Nagarajan and ors. v. State of Mysore and Ors., AIR 1966 SC 1942, has observed as under:-
"It is hardly necessary to mention that if there is a statutory rule or an Act on the matter, the executive must abide by that Act or Rule and it cannot in exercise of its executive powers under Article 162 of the Constitution ignore of act contrary to that rule or the Act."
Similariy, another Constitution Bench of the Hon'ble Supreme'Court. in Sant Ram Sharma v. State of Rajasthan and Ors. AIR 1967 SC 1910 has observed as under:-
"It is true that the Government cannot amend or supersede statutory Rules by administrative instruction, but if the Rules are silent on any particular point, the Government can fill up the gap and supplement the rue and issue instructions not inconsistent with the Rule already framed,"
10. The law laid down above, has consistently been followed and it; is settled proposition of law that an Authority cannot; issue orders/office memorandum/executive instructions in contravention of the statutory Rules, However, instructions' can be issued only to supplement the statutory rules but not to supplant it. Such instructions should be subservient to the statutory provisions. (Vide The Commissioner of Income-tax, Gujarat v. . A. Raman & Co., AIR 1968 SC 49; Union of India and Ors. v. Majji Jangammayya and Ors. AIR 1977 SC 757; The District Registrar, Palghat and Ors. v. M.B. Koyyakutty and Ors. , AIR 1979 SC 1060; Ramendra Singh and Ors. v. Jagdish Prasad and Ors. , AIR 1984 SC 885; P.D. Aggarwal and Ors. v. State of U.P. and Ors. , (1987) 3 SCC 622; Beopar Sahayak (P) Ltd. and Ors. v. Vishwa Nath 81 Ors., (1987) 3 SCC 693; Paluru Ramkrishnaiah and Ors. v. Union of India & Anr., AIR 1990 SC 166 Comptroller & Auditor General of India and Ors. Vs Mohan Lal Mehrotra and Ors. AIR 1991 SC 2288; and C. Rangaswamaiah and Ors. v. Karnatka Lokayukta and Ors., AIR 1998 SC 2496).
11. The Constitution Bench of the Hon'ble Supreme Court, in Naga Peoples Movement of Human Rights v. Union of India., AIR 1998 SC 431, held that the executive instructions are binding provided the same have been issued to fill up the gap between the statutory provisions and are not inconsistent with the said provisions.
12. Thus it is settled law that executive instructions cannot amend or supersede the statutory rules or add something therein The orders cannot be issued in :contravention of the statutory rules for the reason that an administrative instruction is not a statutory, rule nor does it have any force of law; white statutory Rules have full force of law as held by the Constitution Bench of the Hon'ble Supreme Court in State of U.P. and Ors.. v. . Babu : Ram Upadhya, AIR 1961 SC 751; and State of Tamil Nadu v. Hind Stone etc. etc., AIR 1981 SC 711.
13. Similar view has been reiterated in Union of India and Ors. v. Sh. Sornasundaram Viswanath and Ors. , AIR 1988 SC 2255; Union of India and Anr. v. Amrik Singh and Ors. , (1994) 1 SCC 269; Union of India , and Ors. v. Rakesn Kumar, (2001) 4 SCC 309; Swapan Kumar Pal and Ors. v. Samitabhar Chiakraborty and Ors. (2001) 5 SCC 581; Khet Singh v. Union of India, (2002) 4 SCC 380; Laxminarayan R. Bhattad and Ors. v. State of Maharashtra and Anr.,. (2003) 5 SCC; 413; D.D.A. and Ors. v. Joginder S. Monga. and Ors. , (2004) 2 SCC 297; ITW: Signode India Ltd. v. Collector of Central Excise, (2004) 3 SCC 48; and Pahwal Chemicals (P) Ltd, v. Commissioner of Central Excise,'New;-Delhi, (2005) 2 SCC 720, and it has been observed that statutory rules create enforceable. rights which cannot be taken away by issuing executive instructions.
14. In the instant case, admittedly, objections were filed on 13th April, 2005 thus it was not within the competence of the Statutory Authority to entertain the same, Therefore, all the proceedings taken by him subsequent thereto are null and void being without jurisdiction for the reason that the Election Commission could not extend the period of limitation for filing objections beyond statutory, limit, i.e. seven days as provided under Rule 11 of the Rules, 1994.
15. Even otherwise, the original records reveal that in the proforma where the names of the persons against whom objections have been received,-contains eight columns. On the first page, the names of 37 people have, been mentioned. In the note thereof, certain remarks have been made. On the next page, the names of five persons, i.e. petitioners and their three children have-been mentioned in a different hand writing and there had been further-addition in the footnote thereof by. the different ink, though in the same hand writing and it had, been signed on 29th March, 2005. In column No. 3, where the name of the applicant/objector is to be mentioned, the names of, the petitioners and their three children have been mentioned. The name of the objector has not been mentioned anywhere, Matter has been referred to the Sub Divisional Magistrate Meja by the Block Development Officer on 29th March, 2005 along with the documents filed by the parties. Affidavit filed by respondent No. 5 Shri Surya Bali Bind has been notarized on 31st March, 2005. We fail to understand that if the papers had been furnished to the Sub Divisional Magistrate Meje by the: Block Development Officer on, 29th March, 2005, there how it contained the affidavit attested: and verified on 31st March, 2005. There is no doubt that the-report submitted by the Block; Development Officer to the Sub Divisional Magistrate, of maneuvering with the collusion of respondent No. 5 to oust the petitioner No. 1 from the zone of contesting the election. The Sub Divisional Magistrate, Meja is present before us and could not furnish any explanation as to how it was possible for the Block Development Officer to forward the documents on 29th March 2005 if, the affidavit of respondent No. 5 has been attested 'on 31st March, 2005. The order impugned dated 27.04.2005 is based on evidence which includes the affidavits filed, by the parties. The findings recorded by the Statutory Authority are perverse, being based on wrong, unreliable, manipulated and manufactured evidence.
16. Amendment in the Constitution by adding part IX-A confers upon the local self government a complete autonomy on the basic democratic unit unhackled from official control. Thus, exercise of any power having' effect of destroying the constitutional institution besides : being outrageous is dangerous, to the democratic set-up: of this country, therefore, an elected', official Cannot be permitted to be removed unceremoniously without following the procedure prescribed by law, in violation of:the provisions of Article 21 of the Constitution by the State adopting a casual approach and resorting to manipulations to achieve a ulterior purpose. The Court being the custodian of law cannot tolerate any attempt to thwart the institution.
17. The democratic set-up of the country has always been recognised as a basic feature of the Constitution: Like other features eg, Supremacy of the Constitution; Rule of law; Principle of separation of powers; Power or judicial review under Articles 32, 226 and 227 etc. (Vide His Holiness Keshwananda Bharti Sripada Galvaru and Ors. v. State of Kerala, AIR 1973 SC 1461; Minerva Mills Ltd., v. Union of India and Ors. , AIR 1980 SC 1789;; R.C. Poundyal v. Union of India and Ors. , AIR 1993 SC 1804; Special Reference No. 1 of 2002 In re (Gujrat Assembly Election matter) (2002) 8 SCC 237;Union of India v. Association for Democratic Reforms, AIR 2002 SC 2112; and people's Union for Civil Liberities v. Union of lndia and Ors. , AIR 2003 SC 2363)
18. The right of vote, elect or contest for any post is a, statutory right and such rights are subject to the limitations provided therein. (Kabool Singh v. Kundan Singh, AIR 1970 SC 340 and Thampanoor Ravi v. Charupara Devi, (1999)8 SCC 74).p
19. In view of the above, the Statute confers the right upon every eligible person to vote, elect or contest the election as per the statutory provisions. The rights so conferred is a right of an individual as an eligible elector. Therefore, a person can be deprived of right to vote contest or elect only as per the requirement of statutory provision and not otherwise.
20. It has been admitted by the Authority concerned and it is proved from the record produced before us that no notice had ever been served upon the petitioner No. 2 and three children of the petitioners,, whose names stood deleted rorh the provisional voter list. To that extent, it cannot be held that the order impugned in respect of the entire family can be held to be sustaintable in the eyes of law. Thus, so fan as the petitioner No. 2 and three children of petitioners are concerned, the: order impugned is declared to be void ab initio, as the same suffers, from non-compliance of the principles of natural justice. In view of the decision of the Constitution Bench judgment of the 'Hon'ble Apex Court in udit Narain Singh Malpaharia v. Member, Board of Revenue, Bhar AIR 1963 SC 786, the petitioner No. 2 and three children of petitioners have a right ignore the order passed by the Sub Divisional Magistrate, Meja, as it was passed behind their back. To that extent, the order impugned dated: 27.04.2005 is declared to be unenforceable and in-executable and we direct that their names shall be treated to be existing in the provisional as well as in the final voter list.
21. So far as Shri Mangal Dev, petitioner No. 1 is concerned, as per the election scheclule, objections for inclusion or;exclusion in the voter list could have been filed only by 01.04.2005. Admittedly, Objections have been filed by respondent No. 5 on 13.05.2005. The procedure required for the purpose has not been followed, as mentioned above. The order is based on manufactured/concocted evidence. The finding is perverse being based on no reliable evidence.
22. In such a fact situation, we have no option but to allow the writ petition and quash the impugned order dated 27.04.2005.
23. The writ petition succeeds and is allowed with the cost of Rs. 10,000/-(Rupees Ten Thousand Only) which is to be shared by the State,as well as by respondent No. 5 equally. The order impugned dated 27.04.2005 passed by respondent No. 3 is quashed. The petitioners shall be entitled for all consequential reliefs.