IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE FIRST DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION NO : 5639 of 2009 Between: 1 Ballekura Venkateswarlu, S/o. China Malakondaiah, r/o. Oguru Village, Kandukuru Mandal, Prakasam District. 2 Yepuri Malakondaiah, S/o. Ramaih, r/o. Oguru Village, Kandukuru Mandal, Prakasam District. 3 Ballekura Jayalaxmamma, W/o. Venkateswarlu, r/o. Oguru Village, Kandukuru Mandal, Prakasam District. 4 Yepuri Manohar, S/o. Venkateswarlu, r/o. Oguru Village, Kandukuru Mandal, Prakasam District. 5 Yepuri Mouli, s/o. Malakondaiah, r/o. Oguru Village, Kandukuru Mandal, Prakasam District. 6 Andra Malyadri, s/o. Malakondaiah, r/o. Oguru Village, Kandukuru Mandal, Prakasam District. 7 Appanaboina Kamakshi, W/o. Venkateswarlu, r/o. Oguru Village, Kandukuru Mandal, Prakasam District. 8 Medabalini Koteswara Rao, S/o. Nageswara Rao, r/o. Oguru Village, Kandukuru Mandal, Prakasam District. 9 Medabalini Parvathi, W/o. Koteswara Rao, r/o. Oguru Village, Kandukuru Mandal, Prakasam District. 10 Ballekura Tirupathi Swamy, S/o. China Malakondaiah, r/o. Oguru Village, Kandukuru Mandal, Prakasam District. 11 Ballekura Madhavai, W/o. Tirupathi Swamy, r/o. Oguru Village, Kandukuru Mandal, Prakasam District. 12 Ballekura Srinivasulu, S/o. China Malakondaiah, r/o. Oguru Village, Kandukuru Mandal, Prakasam District. 13 Rayapati Jayanth, S/o. Subba Rao, r/o. Oguru Village, Kandukuru Mandal, Prakasam District. 14 Ballekura Nirmala, w/o. Srinivasulu, r/o. Oguru Village, Kandukuru Mandal, Prakasam District. 15 Burra Singaiah, S/o. Venkateswarlu, r/o. Oguru Village, Kandukuru Mandal, Prakasam District. 16 Medabalini Balakrishna, S/o. Pothuraju, r/o. Oguru Village, Kandukuru Mandal, Prakasam District. ..... PETITIONERS AND 1 Election Commission of India, Nirvachan Sadan, New Delhi - 110 2 Chief Electoral Officer, State of A.P. H Block, South Wing, Secretarait, Hyderabad. 3 Electoral Officer-cum-District Collector, Prakasam District, Ongole. 4 Electoral Registration Officer- Cum Revenue Divisional Officer, OV Road, Kandukuru, Kandukuru Mnadal, Prakasam District. 5 Assistant Electoral Officer-cum- Tahsildar, Kandukuru Mandal, OV Road, Kandukuru, Prakasam District. 6 Village Administrative Officer, Of Oguru Village, Office of MRO, OV Road, Kandukuru, Prakasam District. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue any appropriate writ, order or direction preferably a writ in the nature of Writ of Mandamus, declaring the (a) inaction on the part of the respondents in not taking any action on the representation dt.2-2-2009 submitted by the petitioners herein and others as illegal, arbitrary, unconstitutional, unwarranted against the principles of natural justice and direct the 1 and 2 to take immediate action against the respondents 4 and 5 under sec. 32 of the Representation of Peoples Act, 1950 (b) direct the respondents to take immediate steps to include the names of the petitioners herein and others who are entitled and eligible to continue in the electoral rolls and also include the names of the persons who submitted applications requesting the respondents to include their names in the electoral rolls of Oguru Village Kandukuru assembly constituency and to delete the names of the persons whose names are illegally included eventhough they are neither eligible nor entitled to. Counsel for the Petitioners:MR.T.RAJENDRA PRASAD Counsel for the Respondent No.: GP FOR REVENUE The Court made the following : ORDER: (Per GM,J) This writ petition is filed seeking a writ of mandamus to declare the action of the respondents in not disposing of the representation, dated 02.02.2009 submitted by the petitioners and others, as illegal and arbitrary and to direct respondents 1 and 2 to take action against respondents 4 and 5 under Section 32 of the Representation of People Act, 1951 (for short ‘the Act’) and to take immediate steps to include the names of the petitioners and others in the electoral roll of Oguru Village, Kandukur Assembly Constituency by deleting the names of persons, who were illegally included therein. 2. The petitioners state that they are permanent and ordinarily residents of Oguru village, Kandukuru Assembly Constituency, Prakasam district and their names were included in the voters’ list. After delimitation of constituencies, the first respondent directed the respondents to revise the electoral rolls of every constituency and that Kandukuru Assembly Constituency is included in Nellore Parliamentary Constituency. The petitioners state that in the draft electoral rolls, as their names and names of other persons were not included, they submitted a representation to the 4th respondent enclosing ration cards, identity cards etc., seeking to continue their names in the electoral roll and tendered their objections with regard to illegal inclusion of the names of several persons, who are residents of neither the said village nor the assembly constituency. Despite their representation, the respondents have not included their names in the final electoral roll. Aggrieved by the same, they made a representation, dated 02.02.2009 to respondents 1 to 3 seeking to conduct an enquiry and take action against respondents 4 and 5, but no orders have been passed thereon. Hence, they filed the present writ petition. 3. The first respondent filed a counter affidavit stating that pursuant to the filing of the writ petition, an enquiry was conducted and it revealed that at the time of revising electoral roll, respondent Nos.4 and 5 were transferred and the matter was entrusted to the Electoral Registration Officer i.e., Revenue Divisional Officer, Kandukuru, who in turn, conducted a fresh enquiry and reported that out of 16 petitioners, 13 have filed applications along with Form-6 for inclusion of their names in the electoral roll and in regard to the other three petitioners, the villagers filed objections and requested for deletion of their names in the electoral roll duly filing Form-7. Thereafter, a summary enquiry was conducted and it revealed that all the petitioners are not ordinarily residents of Oguru Village and orders were passed accordingly and that the said orders were sent through the Village Revenue Officer for serving on the petitioners. As the petitioners are not residing in the said village, the orders were pasted in the last known residential address in the village under a panchanama. Therefore, there is no breach of official duty on the part of respondents 4 and 5. 4. Respondent No.4 filed a counter affidavit denying the allegations mentioned in the affidavit filed by the petitioners. It is stated therein that pursuant to the filing of Form-6 applications by some of the writ petitioners, a public notice under Rule 26(3) of the Registration of Electors Rules, 1960 was published in the offices of the Grampanchayat Oguru, ERO-cum-Tahsildar, Kandukur ERO-cum-RDO, Kandukur inviting objections, if any, for inclusion of the names not later than 30.03.2009. It is further stated that during enquiry, it was revealed that 13 petitioners were not residing at Oguru Village, Kandkuru Mandal, Prakasham District, for more than a year and they had migrated to Telangana area for their livelihood and that Form-7 objections filed in respect of other three petitioners were accepted duly following the procedure. It is also stated that the petitioners have an alternative remedy of appeal under Section 24 of the Act. Therefore, the writ petition is liable to be dismissed. 5. Learned counsel for the petitioners vehemently contended that though the petitioners made a representation to the respondents concerned along with documentary proof of their residence in the village, i.e., ration cards, identity cards, without conducting any enquiry, the respondents concerned have deleted their names and included the names of others, who are not at all residents either of their village or assembly constituency at any time and therefore, the petitioners have lost their right to vote in the elections. In this regard, he has drawn the attention of this Court to Sections 19 and 22 of the Act, which read as under: “19. Conditions of Registration. Subject to the foregoing provisions of this Part, every person who- (a) is not less than (eighteen years) of age on the qualifying date, and (b) is ordinarily resident in a constituency, shall be entitled to be registered in the electoral roll for that constituency. 22. correction of entries in electoral rolls. If the electoral registration officer for a constituency, on application made to him or on his own motion, is satisfied after such inquiry as he thinks fit, that any entry in the electoral roll of the constituency- (a) is erroneous or defective in any particular, (b) should be transposed to another place in the roll on the ground that the person concerned has changed his place of ordinary residence within the constituency, or (c) should be detected on the ground that the person concerned is dead or has ceased to be ordinarily resident in the constituency or is otherwise not entitled to be registered in that roll, the electoral registration officer shall, subject to such general or special direction, if any as may be given by the Election Commission in this behalf, amend, transpose or delete the entry: Provided that before taking any action on any ground under clause (a) or clause (b), or any action under clause (c) on the ground that the person concerned has ceased to be ordinarily resident in the constituency or that he is otherwise not entitled to be registered in the electoral roll of that constituency, the electoral registration officer shall give the person concerned a reasonable opportunity of being heard in respect of the action proposed to be taken in relation to him”. 6. Learned counsel appearing for the respondents vehemently contended that the respondents, after following the due procedure under the Act, conducted the enquiry and issued notice to the petitioners before deleting their names in the voters’ list. He submitted that there is a statutory remedy of appeal available to the petitioners under the Act. 7. Admittedly, the petitioners are residents of Oguru Village, Kandukuru Assembly Constituency and earlier, their names were included in the voters’ list, but after inclusion of Kandukuru Assembly constituency in Nellore Parliamentary constituency, their names were not included in the final electoral list. Merely because they have gone to eke out their livelihood that does not mean that they are not residents of that village and their names shall not be deleted. Therefore, they made a representation, dated 02.02.2009 to respondents 1 to 3 to include their names in the electoral rolls, but no action has been taken thereon. 8. Section 22 of the Act mandates that before deleting name of a person from the voters’ list in the constituency, the electoral registration officer shall give the person concerned a reasonable opportunity of being heard in respect of the action proposed to be taken in relation to him/her. Though the respondents sent notices to their last known addresses of the petitioners, they have not given them any opportunity of being heard and particularly, when the petitioners have produced the documentary evidence showing their residence, namely, ration cards and identity cards. 9. It is a settled proposition of law that when once the statute postulates the authorities to follow the principles of natural justice, they have to adhere to it in all fairness. Apart from that, even though the statute does not contemplate the principles of natural justice, the authorities have to apply the same when statutory or civil rights are affected. In the instant case, the respondents concerned have violated this aspect. Further, the alternative remedy is not a bar for the petitioners to invoke the extraordinary jurisdiction of this Court, when there is a statutory violation committed by the respondents. It is needless to mention that the petitioners were denied the opportunity of their right to participate in the ensuing elections. The counter affidavit is also silent regarding complaint of petitioners that there are several inclusions which are not sustainable. Thus, inclusion of the names of several other persons illegally in the electoral rolls shows that the authorities have acted against the provisions of the Act. 9. Accordingly, the writ petition is allowed, and respondents 1 to 3 are directed to conduct an enquiry, dispose of the representation dated 02.02.2009 of the petitioners and others after affording an opportunity of being heard to them and take appropriate action thereon including the deletion of the names of the persons, who are said to be illegally included in the electoral rolls of Oguru Village, Kandukuru assembly constituency. No costs. ______________________ GHULAM MOHAMMED, J _______________________ VILAS V. AFZULPURKAR, J Date:01.07.2009 Note: issue c.c. forthwith. sj