IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 13TH OCTOBER 2009 / 21ST ASWINA 1931 WP(C).No. 28897 of 2009(S) -------------------------------------- PETITIONER: ------------------- RAGESH P.K.,S/O.LATE P.GOVINDAN POTHODI HOUSE, CHALAD P.O. KANNUR – 670014. BY ADV. MR.KALEESWARAM RAJ. RESPONDENTS: ------------------------ 1. THE ELECTION COMMISSION OF INDIA, REPRESENTED BY THE SECRETARY, THE ELECTION COMMISSION OF INDIA, NIRVACHAL SADAN, ASOKA ROAD, NEW DELHI. 2. THE CHIEF ELECTORAL OFFICER, KERALA, THIRUVANANTHAPURAM. 3. THE DEPUTY COLLECTOR-GENERAL, KANNUR, (RETURNING OFFICER FOR KANNUR LEGISLATIVE ASSEMBLY BYE-ELECTION, KANNUR) 4. THE TAHSILDAR, KANNUR, (THE ELECTORAL REGISTRATION OFFICER FOR THE KANNUR LEGISLATIVE ASSEMBLY BYE LECTION, KANNUR) 5. THE DISTRICT COLLECTOR, KANNUR. BY MR.MURALI PURUSHOTHAMAN, S.C. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.N.RAVINDRAN, J. ----------------------------------------- W.P.(C)No.28897 of 2009-S ----------------------------------------- Dated 13th October, 2009 JUDGMENT Heard Sri.Kaleeswaram Raj, the learned counsel appearing for the petitioner and Sri.Murali Purushothaman, the learned standing counsel appearing for the respondents. 2. The petitioner is the President of Pallikkunnu Grama Panchayat and a voter of the Kannur Assembly Constituency. He is also a member of the Kannur District Congress Committee of the Indian National Congress (I). The grievance voiced by the petitioner in this writ petition is that a large number of persons named in Ext.P5 have been wrongly included in the electoral roll for Kannur Legislative Assembly Constituency prepared for the ensuing elections and that likewise, a large number of eligible voters named in Ext.P11 have not been included therein. 3. The petitioner submits that he had submitted Ext.P5, a consolidated list of such persons wrongly included in the electoral roll, to the fourth respondent, the Electoral Registration Officer for the Bye-election to the Kannur Legislative Assembly along with Ext.P6 representation dated 9.10.2009 requesting that their WP(C).No.28897 of 2009-S 2 names may be excluded and a final voters list published in time, giving an opportunity to file an appeal as per the provisions of the Representation of the People Act, 1950. Similarly, it is stated that he had also furnished Ext.P11, a list of persons who are entitled to be included in the electoral roll for Kannur Legislative Assembly Constituency. The petitioner contends that the persons named in Ext.P5 list are not entitled to be included in the electoral roll for Kannur Legislative Assembly Constituency, while the persons named in Ext.P11 are entitled to be included in the electoral roll. The learned counsel for the petitioner submits that individual requests for inclusion and exclusion of names have been filed before the fourth respondent and that what is produced in this writ petition is only a consolidated list of persons whose names are liable to be deleted from the voters list and also a consolidated list of voters who are entitled to be included therein. It is alleged that notwithstanding the objections raised to the inclusion of certain names in the voters list and the exclusion of certain names therefrom, till date the fourth respondent has not taken any action in the matter. In this writ petition, the petitioner seeks the following reliefs: “i) To issue a writ of mandamus directing the 4th respondent to take appropriate action on Exhibits P5, P6 and P12 and to pass orders thereon before finalization of electoral WP(C).No.28897 of 2009-S 3 rolls for Kannur Assembly Constituency bye election scheduled to be held to 7.11.2009. ii) To issue a writ of mandamus directing the 4th respondent to take appropriate action on Exhibits P5, P6 and P12 as per Sections 22 and 23 of the Representations of People Act, 1950 before finalization of electoral rolls for Kannur Assembly Constituency bye election scheduled to be held to 7.11.2009.” 4. The relevant averments relating to the petitioner's request for exclusion of certain names from the voters list are those contained in para 11 of the writ petition. It reads as follows: “11. .....A copy of consolidated list of objections raised with respect to Exhibit P1 and P2 are produced herewith and marked as Exhibit P5. Request for deletion of ineligble entries as voters and addition of eligible voters were sought by way of Exhibit P5. The petitioner also submitted a representation enclosing Exhibit P5 before the 4th respondent indicating the ineligible voters. A copy of the said representation is produced herewith and marked as Exhibit P6.” 5. As regards the request for inclusion of eligible voters in and exclusion of ineligible voters from the voters list, the petitioner has in paras 16 and 18 of the writ petition stated as follows: “16. It is submitted that when applications are submitted raising concern against inclusion of ineligible voters and exclusion of eligible voters, it is the duty of the 4th respondent to conduct enquiry in compliance of provisions provided under Representations of Peoples Act. It is submitted that objections which are subject matter of Exhibits P5 and P6 were not enquired into at all. No publication was ever made by the 4th respondent as WP(C).No.28897 of 2009-S 4 contemplated in From No.IV and hence there was no consideration of objection and finalisation of the matter. Since there is no enquiry prescribed under the Representations of Peoples Act, 1950 or issuance of orders prescribed under the Act, the petitioner or other voters are precluded from filing appeal. 18. .....In this context, it is to be noted that the worksheet given by the 4th respondent will show that more than 5000 voters are excluded from Kannur Legislative Assembly Constituency. A copy of the working sheet is produced herewith and marked as Exhibit P11.” 6. Sri.Kaleeswaram Raj, the learned counsel appearing for the petitioner contends that Ext.P5 is only a consolidated list of the names of persons who are liable to be removed from the electoral roll and that Ext.P11 is a consolidated list of persons who are entitled to be included in the voters list. He submits that the fourth respondent is bound to conduct an enquiry under Sections 22 and 23 of the Representation of the Peoples Act, 1950 and take an appropriate decision in the matter. 7. Sri.Murali Purushothaman, the learned standing counsel appearing for the respondents submits that the inclusion of names in the electoral roll is the right of the individual and not the right of any other person or political party and that the petitioner cannot seek the inclusion of the persons named in Ext.P11 in the electoral roll. He contends relying on Section 23 of the Representation of the People WP(C).No.28897 of 2009-S 5 Act, 1950, Rule 13(2) of the Registration of Electors Rules, 1960 and the decision of the Apex Court in Lakshmi Charan Sen V. A.K.M.Hassan Uzaman (AIR 1985 SC 1233) that the petitioner cannot seek the inclusion of the name of any person in the electoral roll. He also contends relying on Section 22 of the Representation of People Act, 1950, Rule 13(1) of the Registration of Electors Rules 1960 and the decision of the Apex Court Lakshmi Charan Sen V. A.K.M.Hassan Uzaman(supra) that in the case of inclusion of the name of any ineligble person in the Electoral roll, individual objections have to be filed in the prescribed form. The learned standing counsel for the Election Commission submits that an application for inclusion of name in the Electoral roll will have to be made in From 6 by the voter seeking such inclusion and that an application seeking the deletion of a name from the Electoral roll will also have to be given in the case of each person who is wrongly included in the Electoral roll Form No.7, by a person whose name is already included in that roll. He submits that petitioner has not pleaded or proved that such applications in From Nos.6 and 7 have been submitted before the fourth respondent and therefore the reliefs sought in this writ petition cannot be granted. 8. I have considered the submissions made at the Bar by the WP(C).No.28897 of 2009-S 6 learned counsel appearing on either side. Section 22 of the Representation of the People Act, 1950 states that 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, is erroneous or defective in any particular or 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 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 direction, if any, as may be given by the Election Commission in this behalf, amend, transpose or delete the entry. The proviso to Section 22 stipulates that before taking any action on any ground under clause a, b and c of Section 22, 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. Rule 13(2) of the Registration of Electors Rules, 1960 states that every objection to the inclusion of a name in the roll shall be in Form 7 and shall be preferred only by a person whose name is already included in that WP(C).No.28897 of 2009-S 7 roll. Form No.7 prescribed under Rule 13(2) of the Registration of Electors Rule, 1960 obliges the applicant to furnish various details. He is also bound to declare that the facts and particulars mentioned therein are true to the best of his knowledge and belief. Similarly under Rule 13(1) every claim for inclusion of the name of a voter in the electoral roll has to be in From 6 and signed by the person desirous of having his name included in the electoral roll. Form 6 also requires the applicant to furnish various details in support of the claim for inclusion of his name in the electoral roll. 9. It is evident from Form Nos.6 and 7 that requests for inclusion of names in the voters list and for exclusion of names therefrom have to be given individually. In other words, a voter will have to make separate applications seeking deletion of the names of ineligible persons from the electoral roll. Likewise, every voter seeking inclusion of his name in the electoral roll will have to submit individual applications. In the instant case, the relief prayed for by the petitioner is to issue a writ in the nature of mandamus directing the fourth respondent to take appropriate action on Exts.P5 and P6 as per Section 22 and 23 of the Representation of the People Act. He has also prayed for a similar relief in relation to Ext.P11. Apart from merely stating that Ext.P5 is a copy of the consolidated list of WP(C).No.28897 of 2009-S 8 objections raised in respect of voters who are ineligible to be included in the voters list, there is no positive averment in the writ petition that any particular voter has or voters have filed applications in Form No.7 before the fourth respondent seeking deletion of the names of ineligible voters. In other words there is total lack of pleadings in the writ petition as to whether separate applications in From No.7 objecting to the inclusion of the names of the persons named in Ext.P5 have been submitted either by the petitioner or by any other voter or voters of Kannur Assembly Constituency. Therefore, in the light of Rule 13(2) of Registration of Electoral Rules, I am of the opinion that the petitioner cannot seek a direction to the fourth respondent to take appropriate action on Ext.P6 in accordance with Sections 22 and 23 of the Representation of Peoples Act. The petitioner has not able to establish with reference to any cogent material that individual applications seeking the exclusion of the persons named in Ext.P5 list from the voters list have been filed before the fourth respondent. In the absence any pleading or proof that such applications have been filed and are pending before the fourth respondent, I hold that the petitioner cannot seek a writ in the nature of mandamus commanding the fourth respondent to take appropriate action as prayed for in Ext.P6. WP(C).No.28897 of 2009-S 9 10. As regards the request for inclusion of names in the voters list/electoral roll, the petitioner has not averred or proved that the persons named in Ext.P11 have submitted individual applications in From No.6 seeking inclusion of their names in electoral roll. As held by the Apex Court in Lakshmi Charan Sen V. A.K.M.Hassan Uzaman (supra) the right to be included in the electoral roll is a right conferred upon an individual and not upon any political party. It is for the individuals named in Ext.P11 if their names have not been included in the electoral roll to apply for inclusion of their names in the electoral roll. No other person can compel them to seek inclusion of their names in the electoral roll. As regards the persons named in Ext.P11 also there is no averment or proof to the effect that the persons named therein have submitted individual applications in the prescribed form seeking inclusion of their names in the electoral roll. Such being the situation, the petitioner cannot seek a writ in the nature of mandamus commanding the fourth respondent to take appropriate action to include the persons named in Ext.P11 list in the electoral roll. 11. Though the learned counsel appearing for the petitioner contend that as regards exclusion of names, the Electoral Registration Officer can exercise the power suo motu, I am of the WP(C).No.28897 of 2009-S 10 opinion that such power cannot be exercised based on vague allegations made by the petitioner in Ext.P6. I am therefore constrained to hold that the fourth respondent cannot be called upon to exercise the power conferred on him under Section 22 of the Representation of People Act suo motu and to delete the names of the persons named in Ext.P5 from the electoral roll. I accordingly hold that there is no merit in this writ petition. The writ petition fails and is dismissed with the observation that if individual applications in Form Nos.6 and 7 have been received by the fourth respondent on or before 12.11.2009, the fourth respondent shall deal with the applications and pass orders thereon in accordance with law. Sd/- P.N.RAVINDRAN Judge //True Copy// PA to Judge ab