JUDGMENT B.S. Chauhan, J.
1. This writ petition unravels the manipulations made by political rivals to overreach each other as candidates in the municipal elections, which would ultimately ensure the success of one and defeat of another. What troubles more is the involvement of the Executive Authority, the Deputy District Magistrate, Tilhar, District Shahjahanpur in this case, who has conveniently passed an order in favour of such smooth operators, who have succeeded in obtaining orders giving rise to the present writ petition.
2. The controversy in this case centers around the preparation of the final electoral roll for the elections of the office bearers and members of the Municipal Board, Khudaganj, District Shahjahanpur. The challenge is by the petitioner, who describes himself as a prospective candidate to the post of Chairman of the Nagar Panchayat, Khudaganj, to the order dated 07.08.2006, which was communicated vide letter dated 14.08.2006, by which the applications filed by the petitioner and respondent No. 5 for exclusion and inclusion of certain names in the electoral roll have been decided.
3. The Electoral Registration Officer, i.e. respondent No. 4 issued a draft electoral roll on 21.08.2005 and the petitioner, upon an application, procured a copy of the draft electoral roll on 16.09.2005. A public notice was issued by the Assistant Registration Officer on 4th May, 2006 stating therein that objections have been received in respect of deletion of 1469 names from the electoral list, the details whereof were already made available on the notice pasted on the Notice Board of the office of the Nagar Panchayat, Khudaganj. The notice (Annex.5) invited objections from persons whose names appeared in the said list by 12th May, 2006. The respondent No. 5 moved application way back on 19.09.2005 for exclusion of 1469 names and the petitioner claims to have moved some application on 16.05.2006 for inclusion of 96 names in the electoral rolls.
4. The respondent No. 5 approached this Court by filing Writ Petition No. 32692 of 2006 and the following order was passed finally disposing of the said writ petition on 29.06.2006:
Heard learned Counsel for the petitioner, Shri M.K. Nigam for the Election Commissioner and Shri Mehrotra, learned Standing Counsel for the respondent Nos. 1, 3 and 5.
The allegation in the writ petition is that after the issuance of the notice dated 04.05.2006 the objections which had already been filed by the petitioner, have not been decided so far and there is nothing to indicate any such conscious decision having been taken. If that be so then the concerned authority is under a legal obligation to dispose of the said objection under the provisions of Section 12-B read with the U.P. Municipalities (Preparation and Revision of Electoral Roll) Rules, 1994.
In view of this, let the respondent No. 4 proceed to dispose of pending objections as alleged by the petitioner preferably within three weeks from the date of production of a certified copy of this order before him after taking into consideration all the material on record and all such other objections taken in accordance with law.
With the aforesaid directions, the writ petition is disposed of.
5. A perusal of the aforesaid direction issued by this Court indicates that the matter was disposed of without entering into the merits of the claim calling upon the authority concerned to dispose of the objections in accordance with law within a period of three weeks of the production of the same.
6. Consequent upon the aforesaid direction, the objections raised by the petitioner have been rejected vide order dated 07.08.2006 and the objections filed by respondent No. 5 have been allowed by deleting the names of 1469 voters from the electoral roll. The said order was communicated to the petitioner on 14.08.2006, giving rise to the present writ petition.
7. Shri Ravi Kiran Jain, learned Senior Counsel with Shri Rishi Chadha, Advocate, appearing for the petitioner submits that the impugned order is in flagrant violation of the provisions of U.P. Municipalities (Preparation and Revision of Electoral Roll) Rules, 1994 (hereinafter called the '1994 Rules'), inasmuch as no procedure prescribed therein had been followed and, therefore, the order impugned is liable to be set aside.
8. Shri P.N. Saxena, learned Senior Counsel along with Shri Amit Saxena, appearing for respondent No. 5; Shri C.B. Yadav, learned Chief Standing Counsel and Shri P.N. Rai appearing for all other respondents opposed the writ petition contending that the order impugned does not suffer from any such infirmity and it does not require any interference. He further submits that the order is appeallable under Rule 20 of the 1994 Rules. Therefore, the writ petition should not be entertained as the petitioner has an statutory alternative remedy.
9. Having heard learned Counsel for the parties and also the learned Standing Counsel, it would be appropriate to refer to the statutory provisions applicable in this case.
10. Section 12-A of the Uttar Pradesh Municipalities Act, 1916 (hereinafter called the Act) provides that the members of a Municipality shall be elected on the basis of adult suffrage in accordance with the provisions of the Act. Section 12-B provides for Electoral Roll for every ward, which shall be prepared in accordance with the provisions of the Act under the superintendence, direction and control of the State Election Commission. The State Election Commission shall cause to prepare and publish the electoral roll in the manner prescribed by the Rules. The State Election Commission may adopt the electoral roll of the Assembly constituency prepared under the Representation of the People Act, 1950 for the time being in force, so far as it relates to the area of the wards. No alteration or correction can be made after last date for making nomination for the election of such wards.
11. In exercise of power under Section 296 of the Act, the State has enacted 1994 Rules (Annex.2), which occupy the field relating to preparation of Electoral Roll, their correction and amendment and the procedure for disposal of the objection to entries in the Electoral Rolls.
12. Rule 7 of the 1994 Rules provides for publication of draft rolls and the procedure for the availability of a copy of the said rolls. The revision of the rolls is provided for under Rule 8. Rule 8 confers a right on any person - (a) whose name is included (b) whose name has wrongly been included (c) whose name is not included (d) whose name was struck off the roll, in the contingencies referred to therein, to apply to the Electoral Registration Officer for inclusion of his name in the roll of the ward provided that such an application has to be preferred within the period stipulated therein from the date of publication of the roll under Rule 7. A close scrutiny of the said Rule indicates that such a right is conferred on the person concerned and not on anybody else or everybody.
13. Rule 9 of the 1994 Rules provides for entertaining objections to the entries in the roll of the ward by any person, whose name is entered in the roll of ward and who wants to object to any particular in such entry in respect of himself or who objects to the inclusion of the name of any other person in the roll of the ward, on the ground referred to in Clause (b) of Rule 9 or who objects to the retention of any name on the rolls on the ground of disqualification as provided under Section 12-D of the Act. This application has to be made within seven days from the publication of the rolls under Rule 7 of the 1994 Rules.
14. Rule 10 of the 1994 Rules further provides the form in which objections under Rule 9 can be made. Rule 11 further describes the procedure to be followed after such objections are received.
15. Further, relevant Rules thereto are quoted below:
12. Rejection of certain claims and objections.-Any application under Rule 8 or 9 which is not presented within the period or in the form or manner, herein prescribed,shall be rejected by the Electoral Registration Officer.
13. Notice and service thereof.-(1) Except in cases where the Electoral Registration Officer is prima facie satisfied as to the validity of claim or objection, every person whose claim or objection is received or his agent presenting the claim or objection and every person to the inclusion of whose name the objection relates shall be served with a notice in Form 1. Specifying the place where and the time when his claim or objection shall be heard, and directing him or his agent to be present with such evidence, if any, as he may wish to adduce.
(2) The notice to the person to the inclusion of whose name the objection relates, shall be accompanied by a copy of the objection.
(3) The notice under Sub-rule (1), shall, if possible, be served personally and in default of personal service shall be served by affixing a copy thereof at the residence or last known residence, within the ward of the person concerned.
(4) A certificate of service, personal or otherwise, shall be deemed to be conclusive proof of the fact of such service.
14. Inquiry into claims and objections.- (1) The Electoral Registration Officer shall hold a summary inquiry into every claim or objection in respect of which notice has been givenand shallrecord his decision thereon and order any addition, correction or deletion in the roll in accordance with his decision and such addition, correction or deletion shall be made accordingly:
Provided that no such addition, correction or deletion shall be made after the last date for making nomination for an election in the ward and before the completion of that election.
(2) At the hearing, the person to whom such notice was issued 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 to be heard.
(3) The Electoral Registration Officer may in his discretion-
(a) require any person to whom, such notice has been issued to appear in person before him;
(b) require that the evidence by any person shall be given on oath and may administer oath for the purpose.
17. A perusal of this procedure does not indicate the entertaining of any claim by any person for including the name of third person. For the purpose of including a name in the electoral roll, the concerned person himself has to move an application under Rule 8. A third person cannot move an application for the inclusion of fresh names.
18. On the other hand, for the exclusion of names, the objections which are to be entertained under Rule 9 have to be disposed of in accordance with the procedure prescribed under Rules 13 and 14, which provide for a detail enquiry and hearing by the Electoral Registration Officer.
19. Rule 10(3) of 1994 Rules deals with the claims and objections. It provides that objections would be filed on the prescribed Form contained in the Schedule to the 1994 Rules, depending upon the nature of application, and the Form shall be preferred in duplicate, as one copy of the same is to be served upon the person, whose name is sought to be deleted. Rule 13 provides that notice shall be served upon the person himself, whose name is sought to be deleted and in default of personal service, he would be served by affixing a copy thereof at his residence or last known residence and a certificate of such service shall be conclusive proof of service. Rule 14 provides for enquiry into claims and objections, which mandatorily requires the personal hearing to the person whose name is sought to be deleted. It is the solemn duty of the Authority under the Statute to provide such person the opportunity of hearing and to lead evidence in support of his case. His statement may be recorded on oath also.
20. In the instant case, the order has been passed without meeting the mandatory statutory Rules. It has been admitted by Shri Satish Pal, the officer concerned, who is present in the Court, that though he joined the office at a later stage, i.e. at the stage of passing the impugned order dated 07.08.2006, his predecessor in office did not ensure compliance of the statutory Rules. We have seen the original records of the entire case including the applications filed by the petitioner as well as by respondent No. 5 and the orders etc, passed by the authorities from time to time. It is not only evident but admitted by the officer himself that the persons, whose names stood deleted from the draft electoral rolls, had never been served any personal notice nor the notices had been affixed at their respective residences nor any of them had been given opportunity of hearing before passing the impugned orders. Only a general notice for appearance was published in the newspaper.
21. Admission is the best evidence. Thus, no further deliberation is required on the issue. Admittedly, the order impugned has been passed in flagrant violation of principles of natural justice and the statutory Rules. A person whose name does not appear in the voter list, cannot contest the election nor can he exercise his right to vote.
22. A Constitution Bench of the Hon'ble Supreme Court in Sukhdev Singh and Ors. v. Bhagatram Sardar Singh Raghuvanshi and Anr. , has observed as under:
The statutory authorities cannot deviate from the conditions of service. Any deviation will be enforced by legal sanction of declaration by Courts to invalidate actions in violation of rules and regulations. The existence of rules and regulations under statute is to ensure regular conduct with a distinctive attitude to that conduct as a standard....Failure to observe requirements by statutory bodies is enforced by courts by declaring (action) in violation of rules and regulations to be void. This Court has repeatedly observed that whenever a man's rights are affected by decision taken under statutory powers, the Court would presume the existence of a duty to observe the rules of natural justice and compliance with rules and regulations imposed by statute.
(Emphasis added).
23. In Dr. Meera Massey v. Dr. S.R. Mehrotra and Ors. , the Apex Court observed as under:
If the laws and principles are eroded by such institutions, it not only pollutes its functioning deteriorating its standard but also exhibits...wrong channel adopted.... If there is any erosion or descending by those who control the activities all expectations and hopes are destroyed. If the institutions perform dedicated and sincere service with the highest morality it would not only up-lift many but bring back even a limping society to its normalcy.
24. A Constitution Bench of the Hon'ble Supreme Court in Ajit Singh (II) v. State of Punjab and Ors. held that any action being violative of Article 14 of the Constitution is arbitrary and if it is found to be de hors the statutory rules, the same cannot be enforced.
25. There is no dispute to the settled legal propositions that statutory provisions require to be given strict adherence and authority is bound to act in the manner prescribed under the Statute.
26. When the statute provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention of the same. It has been hitherto uncontroverted legal position that where a Statute requires to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods or mode of performance are impliedly and necessarily forbidden.
27. The aforesaid settled legal proposition is based on a legal maxim 'Expressio unius est exclusio alterius', meaning thereby that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner and following other course is not permissible. This maxim has consistently been followed, as is evident from the cases referred to above. (Vide Tailor v. Taylor (1876) 1 Ch.D. 426; State of Bihar and Anr. v. J.A.C. Saldanna and Ors. ; Haresh Dayaram Thakur v. State of Maharashtra and Ors. ; Dhanajaya Reddy v. State of Karnataka AIR 2001 SC 1512; and Ram Phal Kundu v. Kamal Sharma .
28. The Statutory Authority miserably failed to give any adherence to the statutory provisions what to talk of strict compliance, nor they followed the procedure required under the law.
29. The democratic set-up of the country has always been recognised as a basic feature of the Constitution. Like other features e.g. Supremacy of the Constitution; Rule of law; Principle of separation of powers; Power of judicial review under Articles 32, 226 and 227 etc. (Vide His Holiness Keshwananda Bharti Sripada Galvaru & Ors v. State of Kerala ; Minerva Mills Ltd. v. Union of India and Ors. ; R.C. Poundyal v. Union of India and Ors. ; Special Reference No. 1 of 2002 In re (Gujrat Assembly Election matter) ; Union of India v. Association for Democratic Reforms ; and People's Union for Civil Liberties v. Union of India and Ors. .
30. 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 ; Thampanoor Ravi v. Charupara Devi ; and Mangal Dev and Anr. v. The State Election Commission and Ors. 2005 (3) ESC Alld. 1742.
31. The Statute confers the right upon every eligible person to vote, elect or contest the election as per the statutory provisions. The right 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 after meeting the requirement of statutory provisions and not otherwise.
32. Thus, in view of the above, we have no hesitation to hold that the statutory rights of thousands of people had been taken away, depriving them to participate in the electioneering system, which is necessary to strengthen the democratic system of governance of this country, at the whims of the authorities, probably in collusion with the prospective candidate in the forthcoming election. However, there is no material to record a finding on this issue.
33. In view thereof, the petition deserves to be partly allowed and the order impugned dated 07.08.2006, communicated vide letter dated 14.08.2006, is liable to be quashed to the extent it excludes the names of the voters from the draft electoral rolls.
34. The petition succeeds and is partly allowed. The order dated 07.08.2006 passed by respondent No. 4, communicated vide letter dated 14.08.2006, is quashed to the extent it excludes the names of the voters from the draft electoral rolls.
35. However, it will be open to the authority under the Statute to pass a fresh order in consonance of 1994 Rules, as early as possible. In the circumstances, there shall be no order as to costs.