LPA No.2/2011 Page 1 of 28 * IN THE HIGH COURT OF DELHI AT NEW DELHI + LPA NO.2/2011 ARUN TYAGI ..... APPELLANT Through: Ch. Rabindra Singh, Advocate. versus ELECTION COMMISSION OF INDIA & ANR. ... RESPONDENTS Through: Mr.P.R. Chopra, Advocate. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA 1. Whether reporters of the local papers be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes O R D E R % 04.04.2011 Questioning the correctness of the order dated 26.10.2010 passed by the learned Single Judge in W.P.(C) No.13779/2009, the present intra-Court appeal has been preferred. 2. The factual matrix giving rise to the present appeal is that the appellant was registered as a voter and he was issued an EPIC No. CZF1248509 by the Electoral Registration Officer for 68 Gokul Pur (SC) Assembly Constituency within the territory of Delhi. In the first week of LPA No.2/2011 Page 2 of 28 March 2009, prior to the parliamentary elections, he came to know that his name had been deleted from the Electoral Roll 2009 by the respondents. 3. Being dissatisfied with such deletion, he preferred WP(C) No.7967/2009 seeking inclusion of his name in the electoral roll. The writ petition was disposed of on 1.4.2009 granting liberty to the appellant to prefer an appeal under Section 24 of the Representation of Peoples Act, 1950 (for brevity „the 1950 Act‟). The appellant filed an appeal which was dismissed by the Chief Electoral Officer by the order dated 25.9.2009. 4. Being aggrieved by the order of the appellate authority, the appellant preferred W.P.(C) No.13779/2009. It was contended before the writ court that the appellate authority had not taken into consideration the fact that he had produced the electricity bills, house tax receipts and a copy of the ration card which showed his mother‟s address to be in Gokul Pur, Delhi. The learned Single Judge perused the impugned order wherein the CEO had recorded that there was a joint inspection on 17.6.2009 which revealed that the house of the appellant is situated in Uttar Pradesh and not in the National Capital Territory of Delhi. The learned Single Judge, by order dated 25.1.2010, required the respondent No.2 to produce the said joint inspection LPA No.2/2011 Page 3 of 28 report. On a scrutiny of the said report, the learned Single Judge found that the revenue officials of district Ghaziabad, Uttar Pradesh as well as the revenue staff of the district North-East, Delhi undertook a joint inspection of the house of the appellant at A-1/67, Gali No.2, Harijan Basti Colony, Gokul Puri in the presence of the Assistant Electoral Registration Officer and came to the conclusion that the house is situated beyond the boundary of Delhi in Uttar Pradesh and, in particular, in village Behta Hajipur, district Ghaziabad (Uttar Pradesh) in khasra No.1031. The learned Single Judge came to the conclusion that the same being in the realm of fact, the writ court in exercise of extraordinary jurisdiction cannot re-appreciate the same and it can only be agitated in a civil suit and accordingly granted liberty to the petitioner therein to seek other appropriate remedies available to the appellant. 5. We have heard Mr. Rabindra Singh, learned counsel for the appellant, and Mr.P.R. Chopra, learned counsel for the respondent nos. 1 and 2. 6. It is submitted by Mr. Singh that before deleting the name of the appellant, it was incumbent on the part of the concerned authorities to follow the principles of natural justice but the same was not followed. It is his further stand that the finding recorded by the appellate authority that there LPA No.2/2011 Page 4 of 28 was a joint inspection and the committee had gone to the house of the appellant and, therefore, the principles of natural justice stood substantially complied with is not factually correct. 7. Mr. P.R. Chopra, learned counsel for the respondents, would contend that the order passed by the appellate authority is totally defensible inasmuch as the appellate authority had granted opportunity to the appellant to explain his case in detail which he did by presenting himself through his counsel on 8.6.2009. The learned counsel would further submit that the joint inspection report speaks eloquently about the situation of the house of the appellant and, therefore, there is no warrant for interference by this Court and the observation made by the learned Single Judge that it is a disputed question of fact and should not be gone into in the writ petition cannot be found fault with. 8. To appreciate the submissions raised at the Bar, it is apposite to refer to Section 22 of the Act. It reads as follows: “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 LPA No.2/2011 Page 5 of 28 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 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 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.” 9. On a plain reading of the aforesaid provision, it is clear as crystal that the Electoral Registration Officer can act on the basis of an application made to him or suo motu after causing an enquiry that any entry in the electoral roll of the constituency should be deleted on the ground that the person LPA No.2/2011 Page 6 of 28 concerned is dead or ceased to be ordinarily resident in the constituency or is otherwise not entitled to be registered in that roll but before taking any action, it is obligatory on the part of the electoral registration officer to give the person concerned reasonable opportunity of being heard in respect of the action to be taken in relation to him. Thus, the provision mandates conducting a prior enquiry and affording an opportunity of hearing to the aggrieved person. 10. The question that emanates for consideration is whether in a case of this nature, hearing by the appellate authority would subserve the mandate of the statute. The learned counsel for the respondents would submit that when a hearing is given at the appellate stage and a joint inspection has been conducted, the mandate of Section 22 is substantially complied with. The learned counsel for the appellant would urge that in a democracy, correction of entries in electoral roll has its own sanctity and when the statute clearly commands that before taking any action 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, it cannot be viewed like a case or a lis in other sphere. That apart, it is canvassed by him LPA No.2/2011 Page 7 of 28 that the joint inspection was conducted behind the back of the appellant and, therefore, it has no meaning in law. 11. At this juncture, we think it appropriate to refer to certain authorities which deal with the concept of basic rule of audi alteram partem and its effect and impact and also the invocation of the principle of post decisional hearing. In State of Orissa v. Dr. (Miss) Binapani Dei, AIR 1967 SC 1269, the Apex Court has observed thus: “It is true that the order is administrative in character but even an administrative order which involves civil consequences as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. No such steps were admittedly taken; the High Court was, in our judgment, right in setting aside the order of the State.” 12. In A.K. Kraipak v. Union of India, AIR 1970 SC 150, the Constitution Bench has ruled thus: “Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to LPA No.2/2011 Page 8 of 28 be added to the rules of natural justice. Till very recently it was the opinion of the Courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often-times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry.” 13. In this regard, we may profitably quote a passage from K.I. Shephard and others, etc. etc. v. Union of India and others, AIR 1988 SC 686 wherein the Apex Court has held thus: “15. Fair play is a part of the public policy and is a guarantee for justice to citizens. In our system of Rule of Law every social agency conferred with power is required to act fairly so that social action would be just and there would be furtherance of the well-being of citizens. The rules of natural justice have developed with the growth of civilization and the content thereof is often considered as a proper measure of the level of civilization and Rule of Law prevailing in the community. Man within the social frame has struggled for centuries to LPA No.2/2011 Page 9 of 28 bring into the community the concept of fairness and it has taken scores of years for the rules of natural justice to conceptually enter into the field of social activities. …” 14. In Swadeshi Cotton Mills v. UOI, (1981) 1 SCC 664, the issue that emerged for consideration was whether prior hearing was imperative to be given to the persons affected before an order under Section 18-AA of Industries (Development and Regulation) Act, 1951 was passed. The majority, after scanning the anatomy of Section 18-AA while analyzing the said question, held as follows: “42. “The necessity for speed”, writes Paul Jackson: “may justify immediate action, it will, however, normally allow for a hearing at a later stage.” The possibility of such a hearing – and the adequacy of any later remedy should the initial action prove to have been unjustified- are considerations to be borne in mind when deciding whether the need for urgent action excludes a right to rely on natural justice. Moreover, however, the need to act swiftly may modify or limit what natural justice requires, it must not be thought “that because rough, swift or imperfect justice only is available that there ought to be no justice”: Pratt v. Wanganui Education Board. 43. Prof. de Smith, the renowned author of JUDICIAL REVIEW (3rd Edn.) has at page 170, expressed his views on this aspect of the subject, thus: “Can the absence of a hearing before a decision is made be adequately compensated for by a hearing ex post facto? A prior LPA No.2/2011 Page 10 of 28 hearing may be better than a subsequent hearing, but a subsequent hearing is better than no hearing at all; and in some cases the courts have held that statutory provision for an administrative appeal or even full judicial review on the merits are sufficient to negative the existence of any implied duty to hear before the original decision is made. The approach may be acceptable where the original decision does not cause serious detriment to the person affected, or where there is also a paramount need for prompt action, or where it is impracticable to afford antecedent hearings.” 44. In short, the general principle – as distinguished from an absolute rule of uniform application – seems to be that where a statute does not, in terms, exclude this rule of prior hearing but contemplates a post-decisional hearing amounting to a full review of the original order on merits, then such a statute would be construed as excluding the audi alteram partem rule at the pre- decisional stage. Conversely, if the statute conferring the power is silent with regard to the giving of a pre- decisional hearing to the person affected and the administrative decision taken by the authority involves civil consequences of a grave nature, and no full review or appeal on merits against that decision is provided, courts will be extremely reluctant to construe such a statute as excluding the duty of affording even a minimal hearing shorn of all its formal trappings and dilatory features at the pre-decisional stage, unless, viewed pragmatically, it would paralyse the administrative progress or frustrate the need for utmost promptitude. In short, this rule of fairplay “must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands”. The court must make every effort to salvage this cardinal rule to the maximum extent possible, with situational modifications. But, to recall the words of Bhagwati, J., the core of it must, however, LPA No.2/2011 Page 11 of 28 remain, namely, that the person affected must have reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise.” After stating the said principles, their Lordships opined thus: “77. The second reason – which is more or less a facet of the first – for holding that the mere use of the word “immediate” in the phrase “immediate action is necessary”, does not necessarily and absolutely exclude the prior application of the audi alteram partem rule, is that immediacy or urgency requiring swift action is a situational fact having a direct nexus with the likelihood of adverse effect on fall in production. And, such likelihood and the urgency of action to prevent it, may vary greatly in degree. The words “likely to affect… production” used in Section 18-AA(1)(a) are flexible enough to comprehend a wide spectrum of situations ranging from the one where the likelihood of the happening of the apprehended event is imminent to that where it may be reasonably anticipated to happen sometime in the near future. Cases of extreme urgency where action under Section 18-AA(1)(a) to prevent fall in production and consequent injury to public interest, brooks absolutely no delay, would be rare. In most cases, where the urgency is not so extreme, it is practicable to adjust and strike a balance between the competing claims of hurry and hearing. 78. The audi alteram partem rule, as already pointed out, is a very flexible, malleable and adaptable concept of natural justice. To adjust and harmonise the need for speed and obligation to act fairly, it can be modified and the measure of its application cut short in reasonable proportion to the exigencies of the situation. Thus, in the ultimate analysis, the question (as to what extent and in LPA No.2/2011 Page 12 of 28 what measure), this rule of fair hearing will apply at the pre-decisional stage will depend upon the degree of urgency, if any, evident from the facts and circumstances of the particular case. Their Lordships further came to hold as follows: “94. …In the facts and circumstances of the instant case, there has been a non-compliance with such implied requirement of the audi alteram partem rule of natural justice at the pre-decisional stage. The impugned order therefore, could be struck down as invalid on that score alone. But we refrain from doing so, because the learned Solicitor-General in all fairness, has both orally and in his written submissions dated August 28, 1979, committed himself to the position that under Section 18- F, the Central Government in exercise of its curial functions, is bound to give the affected owner of the undertaking taken over, a “full and effective hearing on all aspects touching the validity and/or correctness of the order and/or action/of take-over”, within a reasonable time after the take-over. The learned Solicitor-General has assured the Court that such a hearing will be afforded to the appellant-Company if it approaches the Central Government for cancellation of the impugned order. It is pointed out that this was the conceded position in the High Court that the aggrieved owner of the undertaking had a right to such a hearing.” [Emphasis added] 15. In Liberty Oil Mills & Ors. v. Union of India & Ors., (1984) 3 SCC 465, the Apex Court while dealing with the application of principles of natural justice adverted to the concept of pre-decisional hearing and post- decisional hearing and stated thus: LPA No.2/2011 Page 13 of 28 “15. …Procedural fairness embodying natural justice is to be implied whenever action is taken affecting the rights of parties. It may be that the opportunity to be heard may not be pre-decisional; it may necessarily have to be post-decisional where the danger to be averted or the act to be prevented is imminent or where the action to be taken can brook no delay. If an area is devastated by flood, one cannot wait to issue show-cause notices for requisitioning vehicles to evacuate population. If there is an outbreak of an epidemic, we presume one does not have to issue show-cause notices to requisition beds in hospitals, public or private. In such situations, it may be enough to issue post-decisional notices providing for an opportunity. It may not even be necessary in some situations to issue such notices, but it would be sufficient but obligatory to consider any representation that may be made by the aggrieved person and that would satisfy the requirements of procedural fairness and natural justice. There can be no tape-measure of the extent of natural justice. It may and indeed it must vary from statute to statute, situation to situation and case to case…” [Emphasis supplied] 16. In Canara Bank & Ors. v. Debasis Das & Ors., (2003) 4 SCC 557, the Apex Court was dealing with the scope and ambit of Regulations 6(18) and 6(21) of the Canara Bank Officer Employees‟ (Conduct) Regulations, 1976. In the said case, their Lordships posed the question whether the principles of natural justice have been avoided and if so, to what extent and whether any prejudice has been caused and eventually held as follows: LPA No.2/2011 Page 14 of 28 “19. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the frame work of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. Expression “civil consequences” encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life.” Thereafter, their Lordships referred to the decisions in Charan Lal Sahu v. Union of India, AIR 1990 SC 1480, Managing Director, ECIL v. B. Karunakar, (1993) 4 SCC 727 and Union Bank of India v. Vishwa Mohan, (1998) 4 SCC 310 and came to hold that though in all cases, post- decisional hearing cannot be a substitute for pre-decisional hearing, yet it would depend upon the facts of the case. 17. In Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corporation Ltd., (Haldia) and others, (2005) 7 SCC 764, while dealing LPA No.2/2011 Page 15 of 28 with the concept of applicability of natural justice, the Apex Court has held thus: “The principles of natural justice are not rigid or immutable and hence they cannot be imprisoned in a straitjacket. They must yield to and change with exigencies of situations. They must be confined within their limits and cannot be allowed to run wild. While interpreting legal provisions, a court of law cannot be unmindful of the hard realities of life. The approach of the Court in dealing with such cases should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than “precedential”. In certain circumstances, application of the principles of natural justice can be modified and even excluded. Both in England and in India, it is well established that where a right to a prior notice and an opportunity to be heard before an order is passed would obstruct in the taking of prompt action, such a right can be excluded. It can also be excluded where the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provisions warrant its exclusion. The maxim audi alteram partem cannot be invoked if import of such maxim would have the effect of paralysing the administrative process or where the need for promptitude or the urgency so demands. The principles of natural justice have no application when the authority is of the opinion that it would be inexpedient to hold an enquiry and it would be against the interest of security of the Corporation to continue in employment the offender workman when serious acts were likely to affect the foundation of the institution.” [Emphasis supplied] LPA No.2/2011 Page 16 of 28 18. In Haryana Financial Corporation & Anr. v. Kailash Chandra Ahuja, (2008) 9 SCC 31, a two-Judge Bench of the Apex Court after referring to the decisions in R.S. Dass v. Union of India, 1986 Supp SCC 617 and Managing Director, ECIL v. B. Karunakar, (1993) 4 SCC 727 has ruled thus: “36. The recent trend, however, is of “prejudice”. Even in those cases where procedural requirements have not been complied with, the action has not been ipso facto illegal, unlawful or void unless it is shown that non- observance had prejudicially affected the applicant.” Thereafter, their Lordships referred to the decision in P.D. Agrawal v. SBI, (2006) 8 SCC 776 and opined as under: “42. Recently, in P.D. Agrawal (supra) this Court restated the principles of natural justice and indicated that they are flexible and in the recent times, they had undergone a “sea change”. If there is no prejudice to the employee, an action cannot be set aside merely on