Sunil Kumar Kori & Anr vs Gopal Das Kabra & Ors.Etc

4. A provisional voters list was prepared in which the encroachers were also included and objections were invited. Respondent No. 1 preferred objections to the provisional voters list and requested the authorities to exclude the names of the encroachers from the voters list. As his objections were not considered and the voters list was issued, the First Respondent filed Writ Petition No. 93 of 2015 challenging the voters list. According to Respondent No. 1, the voters list was prepared in willful disobedience of the directions issued by the High Court in Writ Petition No. 7169 of 2008 and in violation of Rule 10 (3) of the Rules. The Cantonment Board filed their reply contending that the voters list was prepared in accordance with the provisions of Rule 10 (3) of the Rules and the names of the encroachers were included in the list along with the regular residents. The Cantonment Board averred that no restriction can be placed on the right to vote of encroachers. The Cantonment Board contended that Section 28 of the Act contemplates that a person who was not less than 18 years and who was residing in the Cantonment area for a period of not less than six months was entitled to vote. By a judgment dated 22.04.2015, a Single Judge of the High Court of Madhya Pradesh allowed Writ Petition No. 93 of 2015 and directed the Respondents therein to prepare a voters list as per Rule 10(3) of the Rules by removing the names of the encroachers and inhabitants of illegally constructed houses. Writ Appeal No. 204 of 2015 was filed by the Union of India and others challenging the judgment dated 22.04.2015 in Writ Petition No. 93 of 2015. By an interim order dated 24.04.2015, a Division Bench of the High Court gave liberty to the Appellants therein to continue with the election programme on the basis of the published voters list, subject to the outcome of the appeal. Election to the Panchamarhi Cantonment was conducted on 17.05.2016 and the results were declared.

5. By a judgment dated 21.07.2015, a Division Bench of the High Court of Madhya Pradesh dismissed Writ Appeal Nos. 204 of 2015 filed by the Union of India and others and Writ Appeal No. 288 of 2015 filed by Kamal Kishore Dhoot. The judgment of the learned Single Judge dated 22.04.2016 in Writ Appeal No. 93 of 2015 was upheld. The interim relief that was granted on 24.04.2015 was vacated and the Cantonment Board was directed to conduct elections on the basis of a revised electoral roll to be prepared in accordance with the directions given by the High Court in which the names of only qualified electors should be included. After a detailed examination of the provisions of the Act and the Rules, the Division Bench held that an encroacher cannot be an elector. The Division Bench also held that the Writ Petition which was filed challenging the voters list was maintainable. The Cantonment Board filed SLP (C) No. 26491 of 2015 assailing the judgment dated 21.07.2015 in Writ Appeal Nos. 204 of 2015 and 288 of 2015 which was dismissed by an order dated 21.09.2015. Review Petition No. 3470 of 2015 in SLP (C) No. 26491 of 2015 was disposed of by this Court on 16.11.2015 directing the Cantonment Board to approach the High Court by filing a Review Petition. Liberty was given to the Cantonment Board to approach this Court in case of dismissal of the Review Petition by the High Court. Review Petition No. 950 of 2015 filed by the Cantonment Board was dismissed by the High Court on 17.03.2016. The Review Petitioners contended that the encroachers are permitted to vote in the elections to Legislative Assembly and Parliament and non inclusion of their names in the voters list for elections to Cantonment Board would result in an anomalous situation. The High Court rejected the said submission by holding that the right to vote of the encroachers in the elections to the Cantonment Board was decided on an interpretation of the provisions of the Cantonment Act and the Rules made thereunder, whereas the elections to the Legislative Assembly and Parliament are governed by the Representation of the People Act, 1950. Another point raised by the Petitioners in the Review Petition was that the voters list for Ward No. 7 was not in dispute and the election to Ward No. 7 ought not to have been set aside. Taking note of the fact that the dispute pertained only to Wards No. 1 to 6, the High Court directed the appropriate authority to examine the matter and take a decision as to whether fresh elections have to be conducted for Ward No. 7 also. The High Court rejected the submission that there was a violation of principles of natural justice as all interested parties were not heard. The High Court held that as the judgment under review was on interpretation of the Act and Rules there was no necessity of impleading candidates who contested in the elections. In any event, the High Court held that the election was directed to be conducted subject to the outcome of the appeal and as the appeal was allowed, the election that was conducted was non est. The above appeals are filed challenging the judgment dated 21.07.2015 in Writ Appeal No. 204 of 2015 and order dated 17.03.2016 in Review Petition No. 950 of 2015.

9. The endeavour of the First Respondent has been for preparation of voters list for election to the Cantonment Board in accordance with the provisions of the Act and the Rules. He was successful in Writ Petition No. 7169 of 2008 as the High Court directed the preparation of electoral rolls in accordance with Rule 10 (3). When two voters lists were prepared by the authorities, he again approached the High Court by filing a Writ Petition as well as a Contempt for willful disobedience of the directions issued by the High Court in Writ Petition No. 7169 of 2008. The authorities withdrew the separate voters list containing the names of persons residing in houses which were illegally constructed due to which the Writ Petition and the Contempt were closed. Thereafter, the authorities prepared a consolidated voters list in which persons residing in houses with numbers and persons living in illegally constructed houses also were included. The challenge to the said voters list has culminated in the above appeals. The point that falls for our consideration is the right to vote of encroachers and other persons living in illegally constructed houses within a Cantonment area.

Explanation.-When any place is declared a cantonment for the first time, or when any local area is first included in a cantonment, residence in the place or area comprising the 15 cantonment on the aforesaid date shall be deemed to be residence in the cantonment for the purposes of this sub-section.

Explanation. - For the purposes of this sub-rule, any building or unit line used for the purpose of lodging troops shall be deemed to be a house. (4) The names of electors in each part of the electoral roll shall be numbered as far as practicable, consecutively with a separate series of numbers beginning with number one.”

20. We proceed to deal with the maintainability of the Writ Petition. The contention on behalf of the Appellant is that there is a procedure that is prescribed for claims and objections to the voters list in Chapter III of the Rules and that the only remedy open to a person to challenge the voters list is by way of filing an election petition under Rule 54. We are unable to agree with the said submission as the proviso to Rule 55 provides that no election petition is maintainable either for inclusion or exclusion in the electoral rolls.

21. Ms. Kiran Suri, learned Senior Counsel appearing for the other Appellants submitted that the election was conducted on 17.05.2016 pursuant to an interim order and the Appellants in Civil Appeal No. …………. of 2016 were elected with a substantive majority. She argued that the High Court should have allowed the Writ Appeal taking note of the above facts. The High Court held that no rights accrue to successful candidates in the election conducted pursuant to an interim order, after the election was set aside. The High Court also held that it was made clear in the interim order that the election would be subject to the outcome of the Writ Appeal. We agree with the said conclusion of the High Court and approve the directions that were issued by it for preparation of fresh voters list strictly in accordance with Rule 10 (3) of the Rules.

24. For the aforesaid reasons, the Civil Appeals are dismissed.