IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP. No. 7846 of 2008 Date of Decision: 18.2.2010. Lakhbir Singh --Petitioner Versus State of Punjab and others --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. M.S. Khera, Sr. Advocate with Mr. Abinashi Singh, Advocate for the petitioner. Mr. P.C. Goyal, Addl. A.G., Punjab. Mr. Arun Palli, Sr. Advocate with Mr. Tushar Sharma, Advocate for respondent no.4. *** PERMOD KOHLI.J (ORAL) The petitioner has challenged the Registration of respondents no.4 and 5 as voters in Booth No. 97, Block Kalanaur,District Gurdaspur, election of respondent no.5 to the Zila Parishad, Gurdaspur from Zone No. 12, Bhaddal and also rejection of his nomination papers for the election to the same Zila Parishad from Zone No. 12. It is alleged that respondent no.4 is Agriculture Minister of the State of Punjab and respondent no.5 is his son. Both of them along with their family members were registered as elected voters from Sr. Nos. 174 to 179 in house no. 46, polling booth no. 16, village Langah, Panchayat Samiti Dhariwal, District Gurdaspur in the voter list of 2007 pertaining to Panchayat, Panchayat Samiti and Zila Parishad. It is also alleged that respondents no.4 and 5 are also registered as electors at Sr. Nos. 80 and 84 in Ward No. 11, Nagar Council, Dhariwal in the voter list pertaining to year 2007. The further case of the petitioner is that village Langah in Zone Sohal was reserved for S.C candidate. CWP. No. 7846 of 2008 -2- Respondent no.4 decided to field his son, respondent no.5 as a candidate for Zila Parishad, Gurdaspur and for this object decided to get him registered as voter in village Bikhariwal. A complaint was lodged by Sardar Sucha Singh of Chhotepur, Ex. MLA from the Legislative Assembly Constituency, Dhariwal. It is further alleged that though, an inquiry has been ordered by respondent no.1 but no inquiry report has been conveyed to Sardar Sucha Singh, the complainant. It is further alleged that respondents no.4 and 5 got them registered as voters in village Kalanaur. They were registered in Booth No. 97 in village Kalanaur from Sr. Nos. 709 to 712. Respondent no.4 is registered at Sr. No. 712, whereas respondent no.5 is registered at Sr. No. 719. The petitioner and respondent no.5 both filed their nomination papers for election to Zila Parishad, Gurdaspur from Zone No. 12, Bhaddal. On the date of scrutiny of nomination papers on 3.5.2008 respondent no.5 filed objections to the nomination papers of petitioner on the ground that the petitioner was convicted in a criminal case in FIR no. 40 dated 19.10.1998 in Sessions Case No. 83 on 9.10.1998 and sentenced to undergo imprisonment of 3 years. The petitioner has also placed on record copy of the judgement of the High Court dated 17.7.2003 in Criminal Appeal No. 1281-SB of 2003, whereby the sentence against the petitioner was suspended. On the basis of the aforesaid objections, the nomination papers of the petitioner were rejected and that of the respondent no.5 accepted. The petitioner has, accordingly, filed this petition claiming the reliefs mentioned herein above. Respondents no.1 to 3 and respondents no.4 and 5 respectively have filed their separate replies. As far the official respondents are concerned, it is stated that Sardar Sucha Singh Langah, respondent no.4 CWP. No. 7846 of 2008 -3- made an application to the Electoral Registration Officer (Sub Divisional Magistrate), Gurdaspur for deletion of names of his family members from Sr. Nos. 176 to 179, Ward No. 16 of Dhariwal Block, where they were earlier registered and for their enrollment as electors in village Kalanaur Gram Panchayat. It has further been stated that in the application the said respondent had also mentioned that earlier they were residing at Dhariwal but to contest the Sarpanch Election they got their names registered as voters in village Langah and Sardar Sucha Singh Langah has changed his residence from Langah Block, Dhariwal to village Kalanaur to contest the assembly election of newly made assembly segment Dera Baba Nanak. On obtaining necessary reports, their names were deleted from rolls of Panchayat Samiti and Zila Parishad electoral rolls of 2008. It is further stated that names of family members of respondents no.4 and 5 entered at Sr. Nos. 80, 81, 83 and 84 of the supplementary electoral roll 2008 of Municipal Council, Dhariwal, District Gurdaspur at Sr. No. 113 were also deleted and consequently the names of these respondents and their family members were entered from Sr. Nos. 709 to 712 of the electoral rolls of 2008. It is also mentioned that no person filed any objection against the deletion from the voter list of Dhariwal or village Langah. It is further the case of the official respondents that these deletions and entries were as per the provisions of law. Respondent no.4 in his affidavit has simply stated that he has been unnecessarily arrayed as a party/respondent just to harass and dent his political image. The respondents have also resisted the filing of this petition on the ground that the petitioner has an alternative remedy under Section 89 (1) (c) of the Punjab State Election Commission Act, 1994 by way of election petition. He has further mentioned that on his CWP. No. 7846 of 2008 -4- application the votes were changed from Dhariwal to Kalanaur. Respondent no.5 has also supported the contention of respondent no.4 that the petitioner has a more efficacious remedy by way of election petition in respect to rejection of his nomination and acceptance of nomination of respondent no.5. Another plea raised is that the petitioner has a remedy under Section 33 by way of appeal, where an order is passed under Sections 31 and 32 respectively. Learned counsel appearing for the petitioner has referred to Rule 6 of the Punjab Panchayati Election Rules, 1994 which deals with the revision of electoral rolls at an election. The said rule reads as under:- “ 6. Revision of Electoral Rolls at an election (Section 30). (1) Any person may make an application to the Electoral Registration Officer within three days for revision of Electoral Rolls in accordance with Section 30 before the date fixed by the election Commission for filing nomination papers:- (a) in Form-I for addition of his/her name in the electoral roll if he/she is qualified to be included in the electoral roll of a Gram Sabha and; (b) in Form-II for deletion of any entry in the electoral roll in respect of a person who has ceased to be an elector due to death, change of residence or any other reason which disqualifies him/her and from being an elector in the Sabha area in which he/she has been registered as an elector. (c) in Form-III for correction of any mistake in entry relating to him/her. (d) each application for inclusion, deletion or correction of CWP. No. 7846 of 2008 -5- the name in the electoral roll shall be accompanied by a fee of Re.1, which may be deposited either with the Electoral Registration Officer or in the Govt. Treasury. The fee shall not be refundable. (2). Every application made by a person under sub-rule (1) shall be heard and disposed of within three days of the receipt on the basis of personal hearing by the Electoral Registration Officer who shall inform the claimant and the person who has made the application. (3) (Substituted vide Corrigendum dated 7.9.2005 published in Punjab govt. Gaz. (Extra) on dated 14.9.2005 for 'Or'). On the date fixed for hearing the claim application, if the Electoral Registration Officer is satisfied that the applicant is entitled to have his name entered then he shall enter the name accordingly. If after hearing of objections, he is satisfied that the person is not qualified to be entered in the electoral roll then he shall not enter the name in the roll. He may amend the electoral roll as deemed fit. Similarly, he may correct any mistake in the electoral roll, which he is satisfied after hearing the applicant. (4) Section 31- The Electoral Registration Officer may at any time, correct any clerical or printing error that he may discover in the electoral roll. (5) Section 33- (a) an appeal against the order passed by the Electoral Registration Officer shall be made to the Election Commission or an Officer authorised by him within a period of five days from the date of order of the Electoral Registration Officer. The order of such appellate authority shall be final. (b) The appeal will contain the particulars of the appellant and reasons for challenging the order of the Electoral Registration Officer. CWP. No. 7846 of 2008 -6- (c) Section 34- A fee of Rs. 50/- which may be paid to the District Electoral Officer, shall accompany the appeal. A receipt issued in this behalf shall be sufficient proof of the fee having been paid.” Based upon the aforesaid provisions, it is stated that an application for deletion or addition of the name is to be made in a prescribed form by paying the fee in the Govt. Treasury. According to learned counsel for the petitioner neither the application was filed in the prescribed form nor fee was paid. It is, accordingly, argued that the deletion of names of the petitioner from Dhariwal and corresponding entries made in the electoral rolls at village Kalanaur are illegal and are liable to be set aside. He has also referred to the case of Babu Verghese and others v. Bar Council of Kerala and others reported as AIR 1999 SC 1281 and 2003 SC 511 to support the preposition that where law prescribes a particular mode of doing a particular act the act must be done in that manner. It is, thus, argued that the entire exercise of deletion of names and re-registration in a different village was totally illegal. The aforesaid argument of learned counsel is sought to be met by the opposite side by referring to Sections 31, 32 and 33 of the Punjab State Election Commission Act, 1994. These sections read as under:- “ 31. 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 respect; or (b) should be transposed to another place in the roll on the ground that the person concerned has changed his place of ordinary CWP. No. 7846 of 2008 -7- residence within the constituency; or (c) should be deleted 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 directions, 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 a ground specified under clause (a) or clause 9b) or under clause (c) except in the case of death of a person, 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. 32. Inclusion of Names in Electoral Rolls:- (1) Any person whose name is not included in the electoral roll of a constituency, may apply to the Electoral Registration Officer for the inclusion of his name in that roll. (2) The Electoral Registration Officer shall, if satisfied that the applicant is entitled to be registered in the electoral roll, direct his name to be included therein: Provided that if the applicant is registered in the electoral roll of any other constituency, the Electoral Registration Officer of that constituency shall inform the Electoral Registration Officer of the constituency in which the applicant should have actually been registered and that officer shall, on receipt of the information, strike off the applicant's name from that roll. (3) No amendment, transposition or deletion of any entry CWP. No. 7846 of 2008 -8- shall be made under section 30 and no direction for the inclusion of a name in the electoral roll of a constituency shall be given under this section, after the last date for making nominations for an election in that constituency and before the completion of that election. 33. Appeals:- An appeal against the order of the Electoral Registration Officer made under Section 31 or section 32 shall lie to the Election Commission in such manner and within such time, as may be prescribed in this behalf.” Section 31 of the Act empowers the Electoral Registration Officer to correct the erroneous and defected entries transpose the entry to another place on the ground that the person has changed his place of ordinary residence and also to delete on the ground that the person concerned is dead or has ceased to be ordinarily resident in the constituency. The only rider to act under this act is that the person concerned should be granted an opportunity of being heard except in case of death. Section 32 further empowers the Electoral Registration Officer to register in the electoral roll on application of a person whose name is not included in the electoral roll. It further specifies that where an applicant is registered in the electoral roll of any other constituency the Electoral Registration Officer of that constituency shall inform the Electoral Registration Officer of the constituency in which the applicant should have actually been registered and on receipt of the information, the name of that person is to be struck off from that roll. Section 33 makes a provision for appeal against the order of the Electoral Registration Officer made under section 31 or 32. In view of the above provisions, it is vehemently argued on behalf of the respondents that the petitioner has a more efficacious remedy CWP. No. 7846 of 2008 -9- of preferring an appeal, if, the petitioner is aggrieved. However, it is stated that rules have been framed only to facilitate the action under sections 31 and 32 which simply provides for making an application. Neither the petitioner or any other person had any right to object to such deletion or inclusion of the name nor any of his right is infringed. It is submitted that the petitioner having lost the election has filed this petition simply to harass the respondents. The respondents have also referred to Section 41 which provides scrutiny of the nominations. Referring to the aforesaid provisions, it is argued that the petitioner had the liberty to object to the nomination of respondent no.5 but no objection was ever raised at the time of scrutiny and at this stage, he has no right of objection to the acceptance of nomination of respondent no.5. It is also argued that the petitioner having been convicted by the court, his nomination was rightly rejected. Another alternative and additional argument is that the remedy of the petitioner to challenge the acceptance and rejection of the nomination is by way of election petition under section 89 of the Punjab State Election Commission's Act. Section 89 reads as under: “ 89. Grounds for declaring election to be void:- (1) Subject to the provisions of sub-section (2), if the Election Tribunal is of the opinion- (a) that on the date of his election, a returned candidate was not qualified, or was disqualified to be chosen to fill the seat under the Constitution of India or under this Act; or (b) that any corrupt practice has been committed by a returned candidate or his election agent or by other person with the consent of a returned candidate or his election agent; or (c) that any nomination has been improperly rejected; or CWP. No. 7846 of 2008 -10- (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected:- (i) by the improper acceptance of any nomination; or (ii) by any corrupt practice committed in the interest of the returned candidate by an agent other than his election agent; or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void; or (iv) by any non-compliance with the provisions of the Constitution of India or of this Act or of any rules or orders made under this Act. The Election Tribunal shall declare the election of the returned candidate to be void.” Under section 89 (1)(c), improper registration of a nomination is a ground for filing an election petition. Similarly under clause d (i) improper acceptance of any nomination is also a ground for challenging the election by way of election petition. I have heard learned counsel for the parties. This writ petition is liable to be dismissed on both the counts. In so far the rejection of the nomination of the petitioner and acceptance of nomination of respondent no. 5 is concerned, the petitioner has efficacious remedy of filing the election petition under section 89. Similarly, the deletion of the names from one electoral roll and re-registration in another electoral roll has been done by the competent authority. Though, the plea of the petitioner seems to be technical, however, even if, the petitioner is aggrieved of such an action, he had has a right of appeal under section 33. This petition is accordingly dismissed. The petitioner shall have the liberty to seek statutory remedy available under law, if, so desired. (PERMOD KOHLI) JUDGE 18.2.2010. lucky