WP(C)No.(SH)154 & 169 of 2010 Page 1 of 15 IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM:NAGALAND:MEGHALAYA:MANIPUR:TRIPURA: MIZORAM AND ARUNACHAL PRADESH) SHILLONG BENCH 1. WP(C) No.(SH)154 of 2010 The Cantonment Board Shillong, Represented by its Chief Executive Officer Shri JV Singh S/o Shri JS Singh R/o 13 Pine Walk, Shillong, Cantonment Shillong, East Khasi Hlls District, Meghalaya. : Petitioner Versus 1. Shri Vijay Raj Shah, S/o Shri Ramnath Prasad Shah, R/o Harihar Dairy, Upper Mawprem, Shillong-2. 2. Shri Gauri Shankar Chaudhury, R/o Holding No.2 JB Jhalupara, Cantonment, Shillong. 3. Md. Zalaroa R/o Holding No.70 JB, Jhalupara, Cantonment, Shillong. : Respondents 2. WP(C) No.(SH)169 of 2010 Shri Gauri Shankar Chaudhary S/o Shri RK Chaudhary, R/o Holding No.2 JB, Jhalupara, Cantonment, Shillong. : Petitioner Versus 1. The Cantonment Board Shillong, represented by its Chief Executive Officer, Cantonment, Shillong, East Khasi Hills District, Meghalaya. 2. Shri Vijay Raj Shah, S/o Shri Ramnath Prasad Shah, R/o C/o Harihar Dairy, Upper Mawprem, Shillong. WP(C)No.(SH)154 & 169 of 2010 Page 2 of 15 3. Md Zakaria R/o Holding No.70 JB, Jhalupara, Cantonment, Shillong. : Respondents B E F O R E THE HON’BLE MR JUSTICE T VAIPHEI In WP(C) No.(SH) 154 of 2010 For the petitioner : Mr SP Mahanta. Mr AK Agarwal For the respondents : Mr IC Jha Ms T Yangkyi, Mr MF Qureshi. In WP(C) No.(SH) 169 of 2010 For the petitioner : Mr MF Qureshi, Ms K Chisa, For the respondents : Mr SP Mahanta Mr AK Agarwal Mr IC Jha Ms T Yangkyi Date of hearing : 26.7.2011 Date of judgment and order : 21.10.2011 JUDGMENT AND ORDER Both these writ petitions are directed against the judgment and order dated 30-4-2010 passed by the learned Additional District Judge, Shillong in Election Petition No.1(H) of 2008 holding the election of Member of Cantonment Board from Ward No. III of the Cantonment Board, Shillong to be invalid on the ground that the nomination of the other candidate had been improperly rejected. Both the writ petitions involve a common question of fact and of law, and were accordingly heard together and are now being disposed of by this common judgment. WP(C)No.(SH)154 & 169 of 2010 Page 3 of 15 2. For the sake of convenience, I shall first deal with WP(C) No. 154(SH) of 2010 and my decision thereon will also govern WP(C) No. 169(SH) of 2010. The election for Members of the Cantonment Board, Shillong from seven Wards was notified on 26-3-2008 in terms of Rule 20 of the Cantonment Electoral Rules, 2007 (“the Rules” for short). The respondent No. 1(who is the respondent No. 2 in WP(C) No. 169(SH) of 2010) and the respondent No. 2 (who is the writ petitioner in WP(C) No. 169(SH) of 2010) filed their nomination papers before the Returning Officer of the Cantonment Board. The nomination paper filed by the respondent No. 1 was, however, objected by the respondent No. 3(who is the respondent No. 3 in WP(C) No. 169(SH) of 2010) on the ground that he was not a resident of Cantonment area. After hearing the objector and the other candidates on the date of scrutiny, the nomination paper of the respondent No. 1 was rejected by the Returning Officer under Rule 26(4) of the Rules vide the order dated 19-4-2008. The respondent No. 1 thereafter filed Election Petition No. 1(H) of 2008 before the learned Additional District Judge questioning the legality of the election and for holding a fresh election. The case was contested by the petitioner-Board as well as the respondent 2 by filing their respective written statements. Both the parties adduced their respective evidence in the trial. After the trial, the trial court passed the impugned judgment and order holding that the nomination paper of the respondent No. 1 had been improperly rejected and that the election of Ward No. III of the Cantonment Board had been improperly held and was, therefore, void. 3. The case of the petitioner-Board is that during preparation of the Electoral Roll for the election in June, 2007, the respondent No.1 was a resident of Holding No. 20J.B., Shillong wherein he resided as a trespasser in an unauthorized and illegal construction, which was subsequently demolished on 22- 11-2007 by the petitioner-Board whereafter he shifted his residence to Harihar Dairy, Upper Mawprem area of Shillong: Upper Mawprem is outside the territorial WP(C)No.(SH)154 & 169 of 2010 Page 4 of 15 jurisdiction of the Cantonment limits. It is also pointed out by the petitioner that the respondent No. 1 had contested the Meghalaya Legislative Assembly Election, 2008 from 21, Mawprem Assembly Constituency, which he eventually lost and that in that election, respondent 1, in accordance with the procedural requirements, had declared by affidavit his residential address as Upper Mawprem, Shillong-2, East Khasi Hills District, a fact which was admitted by himself in his cross- examination. It is also pointed out therein that he did not state in the same affidavit that Upper Mawprem, Shillong-2 was his temporary address nor did clarify that Holding No. 40 JB, Shillong Cantonment was his permanent address. It is therefore contended by the petitioner that as the petitioner was admittedly a resident of Upper Mawprem on 11-2-2008 (when the affidavit was sworn by him), he did not fulfill the condition precedent under Rule 28(1) of the Cantonment Act, 2006 (“the Act”) for his enrolment as an elector in the Shillong Cantonment Electoral Roll. According to the petitioner-Board, respondent 1 submitted his application on 2-4-2008 in Form III under Rule 19(2) of the Rules praying for inclusion of his name in the Electoral Roll of Ward No. VI, Holding No. 40 JB of the Cantonment, but the application was rejected by the Nominee of the President, Cantonment Board, Shillong on the ground that he was residing outside the Cantonment area upto 11-2-2008 and did not comply with the mandatory requirement of six months prior habitation in the Cantonment area under Section 28 of the Act. 4. It would appear that the appeal preferred by him before the President, Cantonment Board was rejected under Rule 16(4) of the Rules by the order dated 15-4-2008. It is also pointed out by the petitioner that the respondent 1 in his application dated 2-4-2008 for inclusion his name in the Electoral Roll never prayed for transfer of his name from the Electoral Roll of Holding No. 20JB to Holding No. 40 JB as he was fully aware of the fact that different names were used WP(C)No.(SH)154 & 169 of 2010 Page 5 of 15 by him viz., ‘Vijay Raj Saha’ and ‘Vijay Raj’ and that he was no more a resident of Holding No. 20 JB. It is also the case of the petitioner that under Rule 19 of the Rules, only persons whose name has not been included in the Electoral Roll finally published under Rule 17 are entitled to apply for inclusion of his name in the Cantonment Electoral Roll, but the name of respondent 1 had already been entered in the final Electoral Roll for Ward No. IV, Holding No. 20 JB, which was already published in June, 2007 when he was residing there as trespasser in an unauthorized construction which was subsequently demolished on 22-11-2007 and which was not deleted due to his use of two names and his failure to inform the petitioner-Board. It is also pointed out by he petitioner that respondent 1 gave his name as ‘Vijay Raj Shah’ in the Electoral Roll of Holding No. 20 JB, which was prepared in June, 2007, whereas in his claim application for inclusion of his name in Form III under Rule 19(2) filed on 2-4-2008, he gave his name as ‘Vijay Raj’. At the same time, in his Nomination Paper in Form No. VI under Rule 22 filed on 18- 4-2008, he gave his name as ‘Vijay Raj Shah’, which clearly indicates his dubious character. These vital and mischievous facts have been completely overlooked by the learned Additional District Judge. These are the sum and substance of the case of the petitioner-Board. 5. The respondent No. 1 in his affidavit-in-opposition maintains that he had shifted his house from 20 JB Cantonment, Shillong to 40 JB Cantonment, Shillong in the month of September, 2007 whereas the demolition of his house was made in the month of November, 2007. He admits that he gave his postal address as Harihar Dairy, Mawprem, Shillong in his affidavit filed in connection with the said Assembly Election and the same was necessitated by the illness of his mother, who had to be attended by his wife at daytime, but as his house at 40 JB Cantonment, Shillong would remain closed, to receive all communications in time, his postal address at Upper Mawprem had to be given. He, however, WP(C)No.(SH)154 & 169 of 2010 Page 6 of 15 maintains that he never mentioned Upper Mawprem as his permanent address, and there is no bar under the law to have more than one address. The objection of the respondent No. 3 ought not to have been entertained as the final Electoral Roll had already been published on 16-4-2008: respondent 3 was never produced before the trial court as a witness to substantiate the allegations made against the answering respondent. The shifting of his residence from 20 JB to 40 JB and now to 59 CB all within the Cantonment area does not debar him from taking part in the election. The case of the petitioner that he never prayed for transferring his name from Holding No. 20 JB to 40 JB is misleading as he had already informed the Cantonment Board vide his application in Form III. On the question of his using two different names, it is the case of the answering respondent that he had filed an affidavit to the Cantonment Board to the effect that the names ‘Vijay Raj Shah’ and ‘Vijay Raj’ one and the same person and refer to the same person: there is no provision in the Act or Rules for informing the Cantonment Board about the shifting of his residence from one holding to another in the Cantonment area. 6. It is the further case of the answering respondent that in terms of Rule 14 of the Rules, the names of the electorate can be deleted from the Electoral Roll only when the voter is dead or objection is made to the inclusion of a name on certain grounds in Form IV, but under no circumstances can inclusion of name in the Electoral Roll be questioned at the time of nomination or scrutiny. In the case at hand, challenge to the inclusion of the name of the answering respondent was made only at the time of scrutiny, which could not have been done as the Electoral Roll had already attained finality after its publication in view of the embargo contained in the proviso to Rule 26(3) of the Rules. It is admitted by the answering respondent that his wife had received the said document at his postal address of Harihar Dairy, Upper Mawprem, Shillong as she used to remain at the aforesaid address during day time where her old age and sick mother-in-law who resided WP(C)No.(SH)154 & 169 of 2010 Page 7 of 15 there on: having a postal address and having a residence. He admits that Shri Raju Lambu had issued a residential certificate but does not admit that the certificate issued by him was wrong with respect to his residence at Holding No. 40 Cantonment. Although there is no provision for Headman in the Act, the certificate issued by him in a Cantonment area is, however, for all practical purposes accepted by the various agencies of the State Government: it was not possible to obtain a certificate from Ward Member as there was no elected Ward Member during the nomination. It is contended hat the nomination paper of the answering respondent was arbitrarily and illegally rejected by the Returning Officer and that the impugned judgment does not suffer from any infirmity warranting the interference of this Court. 7. After hearing Mr. S.P. Mahanta, the learned counsel for the Cantonment Board, Mr. IC Jha, the learned counsel for respondent No. 1 and Mr. M.F. Qureshi, the learned counsel for the respondent No. 2 (the writ petitioner in the connected WP(C) No. 169(SH) of the 2010), it becomes obvious that the sole question which falls for consideration in this writ petition is, whether the nomination paper of the respondent No. 1 has been improperly rejected or not by the Returning Officer. Before proceeding further, for better appreciation of the controversy, it will be useful to reproduce the order dated 19-4-2008 passed by the Returning Officer rejecting the nomination paper of the respondent No. 1, which is reproduced below: “Reasons for rejection:- In course of scrutiny one Md. Zaheer of holding No. 59 CB Shillong Cantonment submitted a written objection to the nomination paper filed by Shri Vijay Raj. The main ground of objection is that Shri Vijay Raj is not the resident of Shillong Cantonment Area and he is a resident of Upper Mawprem which is outside the Cantonment Area. Seen perused and examined the enclosed documents which is an order passed by the President Cantonment Board Shillong under Rule 16(4) of the Cantonment WP(C)No.(SH)154 & 169 of 2010 Page 8 of 15 Electoral Rules 2007 dated 15-4-2008. This order was passed while disposing the appeal preferred by Shri Vijay Raj. It appears that Shri Vijay Raj was at one time residing in holding No. 20 J.B. Shillong Cantonment which was demolished being unauthorized construction during November 2007 and thereafter he shifted to Upper Mawprem and from where he contested the last Meghalaya Legislative Assembly election and for the purpose of election he filed necessary affidavit on 11-2-2008 showing himself as a resident of Upper Mawprem which is outside the Shillong Cantonment. For the purpose of the Cantonment Board Election he wanted his name to be included in the Electoral Roll of 2008 of Shillong Cantonment Board claiming to be the resident of 40 J.B. and filed his claim before the authority concerned and on verification of his claim to be resident of Holding No. 40 Jhalupara Bazar Shillong was found to be fake and rejected. In fact Shri Vijay Raj could not show to the satisfaction of the authority that he has any house for the purpose of resident within the Shillong Cantonment after 11-2-2008. Accordingly his claim was rejected and thereafter, he preferred appeal against the order of rejection which was also dismissed on the ground that since 11-2-2008 he was admittedly the resident of Upper Mawprem Shillong-793002 which is outside the Cantonment Board limits and that he does not fulfill the requirement of Section 28(1) of the Cantonment Act, 2006. Having no residence and not residing for a period of six month immediately preceding the qualifying date, I allowed the objection filed by Md. Zaheer of Holding No. 59 CB and rejected the nomination paper filed by Shri Vijay Raj from Ward No. III of Shillong Cantonment.” 8. I may as well reproduce the order dated 10-4-2008 rejecting the claim for inclusion of the name of the respondent No. 1 and his wife in the Electoral Roll in question: “CLAIM FOR INCLUSION OF NAME IN THE ELECTORAL ROLL UNDER RULE 19 OF CANTONMENT ELECTORAL RULE 2007 – SHRI VIJAY RAJ AND SMT SIMA RAJ” 1. On scrutiny of Form III submitted by the claimant Shri Vijay Raj to the Cantonment Board, for inclusion of his name along with his wife, Smt Sima Raj and the Affidavit submitted by him before the Magistrate Ist Class at Shillong on 11-2-2008 (as submitted by the CEO to the nominee of the President Cantonment Board) the following is observed:- 2. That Shri Vijay Raj has stayed with his family upto 11th February, 2008 at an address which is outside the Cantonment area, hence does not complete 6 month stay in the WP(C)No.(SH)154 & 169 of 2010 Page 9 of 15 Cantonment Area vide Section 28 of the Cantonment Act, 2006. 3. In view of the above, inclusion of Shri Vijay Raj, Son of Shri Ram Nath Prasad and Smt Sima Raj, wife of Shri Vijay Raj is rejected.” 9. The finding of the trial court that there is no dispute that the respondent No. 1 was enrolled as a voter in the Cantonment Board Election is substantiated by the materials on record. In the additional affidavit filed by the respondent No. 1, he asserts that he is a resident of 20 JB and 40 JB, both of which are falling within the jurisdiction of Shillong Cantonment Board; that he is presently residing at 59CB (Cantonment Bazar), which also falls within the Cantonment area; that 20 JB is situate at Ward IV, while 40 JB is situate at Ward VI, both of which fall within Jhalupara otherwise known as Jhalupara Bazar well within the Cantonment limits. It is also asserted by the respondent No. 1 that the entire Cantonment Area falls within 21, Mawprem Constituency for the purpose of MLA election: he had contested the MLA election from 21 Mawprem Constituency. He also states that Harhiar Dairy, Upper Mawprem falls under 21 Mawprem Constituency and that no area of Jhalupara also known as Jhalupara Bazar falls within the Shillong Cantonment. The Chief Executive Officer, Cantonment Board, Shillong in his letter dated 25-7-2011 addressed to the respondent No. 1 has now clarified that the Jhalupara Bazar falls within the notified Civil area of Shillong Cantonment and that Holding No JB and 40 JB falls within Jhalupara Bazar, Civil area of Shillong Cantonment. In the nomination paper for election to Cantonment Board (Annexure-VII), the proposer also declared that the full postal address of the respondent No. 1 was 40 JB, Jhalupara, Cantonment, Shillong vide Electoral Roll No. 339 and Ward No. IV. In my opinion, the findings of the trial court that the respondent No. 1 was enrolled as a voter in the Electoral Roll for the Cantonment Board Election, is further reinforced by the aforesaid additional documents, the authenticity whereof has not been questioned by the petitioner. The question WP(C)No.(SH)154 & 169 of 2010 Page 10 of 15 which now falls for consideration is, whether the nomination paper of the respondent No. 1 who has been shown to be a voter in the Electoral Roll for the Cantonment Board Election can be rejected on the day of scrutiny for reason which relates to registration in the electoral roll and anything referred to Rule 13 of the Rules. 10. At this stage, I may briefly refer to the relevant provisions relating to election of the Cantonment Board. Section 27 of the Act says that the Board, and the Officer commanding the station if no such Board is constituted, shall prepare and publish an electoral roll showing the names of persons qualified to vote at elections to the Ward and such roll shall be prepared, revised and finally published in such manner and on such date in each year as the Central Government may by rule prescribe. Sub-section (2) and sub-section (4) of Section 27 are important, which read thus: “(2) Every person whose name appears in the final electoral roll shall, so long as the roll remains in force, be entitled to vote at an election to the Board, and no other person shall be so entitled.” * * * deleted * * * (4) If a new electoral roll is not published in any year on the date prescribed, the Central Government may direct that the old electoral roll shall continue in operation until the new roll is published.” 11. Then, Section 29(1) of the Act provides for qualification for being a member of the Board and prescribes that save as hereinafter provided, every person, not being a person holding any office of profit under the Government, whose name is entered on the electoral roll of a cantonment shall be qualified for election as a member of the Board in that Cantonment. Thus, on a combined reading of sub-sections (2) and (4) of Section 27 and Section 29(1), it becomes crystal clear that a person whose name appears in the final electoral roll of a WP(C)No.(SH)154 & 169 of 2010 Page 11 of 15 Cantonment shall be entitled to vote at an election to the Board and shall also be eligible for election as member of the Board in that cantonment and that a person whose name appear in such final electoral roll shall continue to be entitled to vote so long as the roll remains in force. This then takes me to Rule 26 of the Rules, which is in the following terms: “26. Scrutiny of and objections to nomination papers(1) On the date and at the time appointed, the Returning Officer shall undertake scrutiny of the nomination papers. (2) No person other than the candidates, their election agents and proposers shall be permitted to be present and they shall be given all reasonable facilities for the examination of nomination papers. (3) Objections to a nomination paper may be oral or in writing and may relate not only to the form of the nomination but also to the violation or non-observance of any provision of the Act or the rules made thereunder relating to such nomination, including objections to the eligibility of the candidate to stand for election or the proposer to nominate. Provided that no objection to a candidate or the proposer which relates to his registration in the electoral roll and anything referred to in Rule 13 shall be considered.” 12. Rule 13 deals with claims for the inclusion of a name in the electoral roll and every objection to an entry made therein and the period during which such claims and objections shall have to be made. The proviso to sub-rule (3) to Rule 26 categorically put an embargo, on the date and at the time of scrutiny of nomination papers, against any objection to a candidate or the proposer which pertains to his registration in the electoral roll and anything concerning claims for inclusion of a name in the electoral roll and any objection to an entry made in the electoral roll. It is, however, contended by Mr. S.P. Mahanta, the learned counsel for the respondent-Board, that though the respondent No. 1 was a residing as a trespasser at Holding No. 20 JB at the time of preparation of the electoral roll for the cantonment, but the illegal and unauthorized construction was demolished on 22-11-2007 whereafter he shifted to Harihar Dairy, Upper Mawprem area, which is beyond the limit of the Cantonment thereby ceasing to be a resident of WP(C)No.(SH)154 & 169 of 2010 Page 12 of 15 Cantonment. According to him, once he ceased to be a resident of Cantonment area, he is no longer entitled to be a voter of the Cantonment. Much emphasis has been laid by Mr. M.F. Qureshi, the learned counsel for the respondent No. 2, that as the respondent No. 1 had contested the election to the Meghalaya Legislative Assembly, 2008 by declaring his residential address as Upper Mawprem, Shillong- 2, which is outside the limits of Cantonment area, he is not entitled to be included in the electoral roll. According to the learned counsel, as the respondent No. 1 was residing outside the cantonment area upto 11-2-2008, he, at the time of making an application on 2-4-2008 in Form III for inclusion of his name in the electoral roll for Holding No. 40 JB, had not resided therein for not less than six months, his application was rejected by the Returning Officer, which was also affirmed by the appellate authority. 13. In my judgment, both the contentions of the learned counsel appearing for the petitioner and the respondent No. 2 are fallacious, and have completely ignored the admitted fact that the name of the respondent No. 1 was already entered in the electoral roll for Holding No. 20JB, which was prepared in 2007. It is nobody’s