Judgment sc-s-1985-1-493-540

The registratit;>n officer, under Rule 17, has th'e -Power to reject any claim or objection wllich h lodsed within the prescribed time or

t.c. SliM )i, A.tc.M.H. tJz:iAMAN (Bahru/lsiam, J.) 533 in the prescribed form and manner. Under Rule 18, if the registra· tioo officer is satisfied as to the validity of any claim or objection, A he may allow it without further inquiry after the expiry of one week from the date on which it is entered in the list ex~ibited by him under clase (b) of Rule 16. There is, however, a restriction on the power of the registration officer under the proviso to Rule 18. That restriction is that if there be a demand for inquiry in writing to the registration officer by any person against the acceptance of claim or 8 objection, such claim or objection shall not be allowed without further inquiry. Rule 19 provides that where a claim or objection is not allowed under Rule 17 or 18, the registration officer shall give notice of hearing of the claim and objection. Under Sub·rule (2) of Rule 19 that the notice mentioned in sub·rule (1) of Rule 19 may be c given either personally or by registered post or by affixing it to the person'& residence or Iaiit known residence within the constituency. Rule 20 gives power to the registration officer to hold a summary inquiry into claim and objection under Rule 19. Under sub·rule (2) to Rule 20, the hearing of the claimant or the objector and the person objected to and any other person who, in the opinion of the registration ofl\cer, is likely to be of assistance to him, shall be entit- led to appear and be heard. Sub·rule (3) to Rule 20 gives a discre· tion to the registration officer to require any claimant or objector or any person objected to appear in person before him, or require that the evidence tendered by any person shall be given on oath and administer an oath for the purpose.

A combined reading of Rules 18, 19 and 20 show that they are based on the principle of natural justice keeping in view the right of an eligible voter to be included in the electoral roll and the right of any person to see that the names of persons not so eligible, but wrongly included earlier be deleted from the electoral roll. Rule 21 jive11 suo mota power to the registration officer to include names inadvertently omitted. Rule .21 (A) give suo moto power to the • registration officer to delete the name of dead electors of persons who have ceased to be or are not ordinarily residents in the con"! G stituency. Rule 22 is very important. It gives power to the registration officer to prepare a Jist, after compliance of Rules 18, 20, 21 and 21A and publish the roll together with the list of amendments by makina a complete copy thereof available for inspection and displaying a notice in From 16 at his office. Under sub-rule (2) of H Rule 22, en sun pu~lieatien, the roll together with the Jist of

534 sUP.ltBME cotillT llBPORTS (198$] SUPPl.. S.C.l.

amendments "shall be the electoral roll of the constituency,.. A Under sub rule (3), this roll shall be the "basic roll" for the con· stituency. Rule 23 provides for appeal from the decision of the registration officer under Rules 20, 21 or 21A to an appropriate authority. These provisions disclose the importance to be given to the preparation of an electoral roll. B

8. It is true, as submitted on behalf of the Election Commis- sion, that a perfect electoral roll is not possible. But at the same time, it must be remembered that the name <.' f any eligible voter should not be omitted or the name of any disqualified person should c not be included in the electoral roll, in violatian of any coustitutional or statutory provisions. The error, when pointed out, has to be removed. lt must also be remembered that a large section of the electorate of our country consist of illiterate people and not politi- cally so conscious as to see that their names are in the electoral roll. Needless to say that ours is a democratic country with a parliamen· D tary from of government that is run on party basis. The parliamentary form of goverment depends on political parties. A duty therefore is east on the political parties to educate the electorate and take steps that the names of eligible persons are included in the electoral rolls and that names of ineligible persons are deleted. Erroneous inclusion or omission of the names of a few persons may not be of much consequence. But if a considerable number of the names of such persons are either wrongly included in, or excluded from, the electoral roll, it will be of great consequence to a particular party either in power or in the opposition. The electoral registration officer, therefore, cannot be f.1stidious as to whether the claims and objections are strictly in prescribed forms. Even when there are omnibus objections by a political party or political parties, as in this case, filing claims and/or objections, such claims and objections have to be inquired into and necessary action taken so that correct • opinion of the electorate may be reflected in the result of the G eJection.

9. ln the instant case, it must be said in fairness to the Election Commission, on receipt of omnibus complaints and objections on behalf of a large number of persons, the Election Commission direc- II ted the Chief Electoral Registration Officer of West Bengal to inquire into these claims and objections and take appropriate action. But it does not appear or there is nothing on record to show that those

t.c. SEN v. A.K.M.H. UZZAMAN (Balttu!Tsiam, i.) 535

claims and objections, albeit omnibus, may be sometimes not strictely in the prescribed forms, were disposed of by the Electoral Registra. A tion Officer after issue of notices as required by the rules. The affidavits filed on behalf of the Election Commission by Mr. Krishnamurthi, and Mr. Oanesh:m vaguely state that they were "duty" disposed of. B In para 46 of the affidavit of Mr. N. Krishnamurthi, the Chief Electoral Officer of West Bengal, it has been, inter alia, stated, "Similarly, as regards the letter dated January 17,1982 of Shri Bholanath Sen addressed to me regarding his complaints in respect of the Bhatar Assembly Constituency I say that all specific complaints contained in his letter hm•e been duly looked into by the Electoral c Registration Officer and I have also e~tamined the same. I crave leave to refer to the reports in this regard at the time of bearing" (emphasis added). It bas not been stated that the complaints were inquired into after issue of notices as required by law. D In clause (z) of Part I of another affidavit filed by Mr. Krishna- murthi, it has been stated :

''In early December, 1981, Shri Ajit Panja, Leader of Indian National Congress, made a complaint regarding E the non-inclusion and wrong inclusion of certain entries in the electoral roll of 158 of Burtola Assembly consti· tuency. A special check was made and remedial action .. taken in respect of 6000 entries out of 89,000 entries before the finalisation of the intensively revised rolls of 31.12.1981. A copy of the report of the Electoral Regis· F tration Officer who is the Collector of Calcutta is annexed a~ Annexure 19".

The second part on pa&e 4 of Annexure 19 reads : G "At the time of house to house enumeration, enumera· tors approached the head of households and banded over to them their electoral cards under their signature. At this time, the Supervisors also signed both the copies H of the electoral cards. After the electoral cards were deposited in our office, the Supervisors made a test check of about 30% of the electoral cards. Myself alongwitb

$36 SUPRI!ME COURT REPORTS {19851 SUPPL, S,C.t.

my Assistant E.R.Os made a test check of about 10%. A On such test case, large number of voters were included in the draft roll. In particular, in Burtolla Assembly Constituency, more than 6000 voters weres included by the Assistant E.R.Os at the time of their test check. A test check of about 5 to 10% was conducted in respect of B the decreases in number of voters in all the constituencies by special squads. In Burtolla Assembly Constituency such test checks were conducted by Sr. A. Roy Chaudhury, Addl. Treasury Officer and Assistant E.R.O ....-.... ·---"·

c It has not been stated as to what happened to, and what reme· dial measures were taken in respect of, the other 83,000 entries. It has also been stated in this affidavit that in Form 6, (I) total number of claims received was 4,17,231; (2) total number of claims allowed was 3,05,072. It has not been explained as to what was done to the other claims of 1,12,159, or that these cases rejected after hearing as required by law. It has also been stated in the.affidavit that the total number of objections received Form 7 was 1,09,865 and the total number of objections allowed was 65,430. It has not been explained as to what was done in respect of the difference of 44,435 objections or that these objections were rejected after hearing as enjoined by law. What has been stated in para (o) at page 26-A of the affidavit is "All the above claims and objections in Forms 6, 7 and 8 were to be 'duly dealt with and disposed of by the Electoral Registration Officers by that date". But it has not been stated that they were disposed of as required by law. It must be said in fairness to Mr. F Krishnamurthi that as Dr. Gopal Das Nag had intimated to him that he (Dr. Nag) had not been able to file his specific complaints with the concerned Electoral Registration Officers before January 16,1982 which was the dead-line date, and as these omnibus complaints had been given to him prior to 16. 1.1982, "in order not to be too techni· cal (though in law the complaint and objections had to be in the prescribed forms and had to be submitted to the respective Electoral Registration Officers within the prescribed time) by a radiogram I requested the concerned Electoral Registration Officers of 16 consti- tuencies in respect of which the omnibus complaints were made by the complainant in question, to accept them and promptly enquire into them and take remedial action under rules 21 and ~I A of 1960 rules so that the enquiry could be completed with the utmost promp-

L.C. SEN l'. A.K.v.H. UZZAMAN (Bahrullslam. J.) S31

titude and to report back with respect to the remedial action taken". But there is nothing to show that his directions were in fact carried out by the Electoral Registration Officers in accordance with the relevant Rules.

It has been stated in clause (p) at page 38 of the affidavit that "pursuant to the various radiogram messages, the District Election B Officers had take the following action and were continuin& to take the following actions :-

(i) In respect of complaints in Forms 6,7 and 8, tltey were being dealt with and disposed of. c ( ii) In respect of the specific cases in omnibus complaints. they were being enquired into and treated as information for action under rules 21 and 21A of 1960 Rules after due investigations mostly with 1OO% on the spot verification. Proformas indicating the manner in which the omnibus complaints were accepted or rejected or dis· D posed of were duly filled in after determination and forwarded to the Chief Electoral Officer".

With regard to the complaint that notices were not receiYed by the claimants and objectors, it has been admitted that "due to postal delay, the intimation neither reached Shri Ajit Kumar Panja or his agent about the hearing. In fact, the law does not require any inti- mation to be given to any representative of political parties in con• nection with enquiries under rules 21 and 21A except that reasonable opportunity should be given to the affected person whose names for deletion is included in the list under rule 21A of the 1960 Rules. The procedure set out on 2nd Februrary, 1982 was only to facilitate an expeditious disposal of the complaint if found to be &eouine".

Technically, Mr. Krishnamurthi is right that a political party is not entitled to. under the law, to receive any notice but in the back-! G ground of the illiteracy and ignorance and lack of political conscious.,; ness of a large section of the electorate, it is but proper and in consonance with the spirit of the Constitution and the Election Jaws that notices be given to the leaders of political parties who file com- plaints or omnibus complaints and claims and objections. It has also been stated in para (r) at page 41 of the affidavit that .. The team visited various places in Calcutta and ~n the districts of H~o&hly

538 SUPREME COURT REPORTS (1985) SUP PL. S.C.tt

24-Parganas, Midnapore and Maida for on·the·spot verification of complaints on selective basis". There is nothing to show that these on-the-spot verifications were made with prior notice to the complainants/objectors and/or their representatives. Obviously, a thorough enquiry into the complaints /Objections were not made, "in- as-much as the percentage of errors, with reference to the total electors was too low and below normal", as pleaded on behalf of the B Election Commission. But it must be remembered that the fate of a political party is decided by small margin of votes in our country as the political forces have not yet fully crystalised and as there are too many political parties in our country, and the e ections are multi-cornered. c There may be another reason for a Registration Officer for not strictly following the provisions of law in disposing the claims/objec- tions inasmuch as ''the proceedings under rules 21 and 21A of 1960 Rules are summary in nature having regrad to the necessity of expedi- D tious revision of electoral rolls within a time bound programme", as contened on behalf of the Election Commission in their affidavits. It has also been asserted in para 27 at page 64 of the affidavit that the decision in disposing of tht: claims and objections under rules 21 and 21A of 1960 Rules, ''The Electoral Registration Officer is not required to communicate his decision to any person making claims and objections when taking decision under rules 21 and 21A of 1960 Rules as the proceedings under rules 21 and 21A are taken under his suo moto power".

10. The Writ Petition has been filed by eight writ petitioners of F . whom Petitioner No. (I) is the General Secretary of the West Bengal State Muslim League and also member of the National Executive of Indian Union Muslim League and a member of existing West Bengal Legislative Assembly, No. (2) is a member of the Polti Bureau of the all India Communist Party, No. (3) is the President of the all India Christian Democratic Party, No. (4) is the Vice-President of the West G Bengal Unit of the Janta Party and Executive Member of National Committee of Janta Party and ex-M.P., No. (5) is a member of the All India Congress Committee (Socialist) and an ex-M.P., No. (6) is a sitting member of the existing West Bengal State Legislative Assem- H bly and Secretary of the Congress Legislative Party, West Bengal Assembly, No. (7) is a member of the Republican Party of India, and No. (8) is the Vice-President of All India, Forward Block Central 'committee.

t.c. SEN v. A.JLM.H. tJZ~AMAN (Bahrul Islam, i.) S39

The petition contains 98 paragraphs of which paras 3 to 70 refer to the provisions of law, para 73 to the alleged anomalies in the A voters' lists. Paras 86,93 and 95 refer to the alleged illegal inclusion/ omission of the names of about 8,00,000 voters. It has been stated in paragraph 72 that 14 constituencies were affected by cyclones and other calamities, about 1000 to 5000 teenagers were included in the voters• lists, a large aumber of aliens were included in the voters, B Jist, a large number of bona fide voters were excluded, ficti- tious enteries were made and distorted names were recorded. It was also alleged that CPI (M) enumerators having allegiance io the party in power in West Bengal were appointed for the preparation of the voters' lists. The answer on behalf of the Election Commi~sion is that the enumerators were teachers who are normally appointed as enumerators. In my opinion, no persons who are members of a political party or of an association affiliated to a political party should b~ appointed to be enumerators of victors so that there may not be any foul pl:.l.y or rigging in the preparation of the electoral roll. Enumerators should be person~ who are not affiliated, either directly or indirectly to any politica I party, whether in power or not; for this purpose, it is desirable th1t only Government officers inclu- ding teachers of Government schools and colleges may be appointed enumerators, and not of non-government organizations or institutions. unless their rules debar their employees to be members of political ~~ E

It, therefore, cannot be said that in the revision of the electoral roll, all possible care as enjoined by the letter and spirit of the Constitution and the statues was taken in this case. F I l. Now about reliefs, in this case, however, reliefs prayed for, are not po!losible to be granted. It is not the petitioners, case that the electoral rolls in all the 294 constituencies in West Bengal have not been revised in accordance with law. They have made allegations only with respect of constituencies and omnibus complaints were filed only in respect of two constituencies namely, G Bartolla and Bhatar. Although there no electoral rolls prepared in accordance with law for BartoiJa and Bhatar constituencies the genera] election of the entire state cannot be held up, as electoral roUs are prepared and published constituency-wise. It is, therefore not possible to hold up the election in r~spect of all the constituencie~ H unless a case is made out that no election can be held in any of aU the 294 constituencies. Secondly, no concrete name of persons have

540 SUPREME COUllT REPoRTS (198SJ SUPPL. S.C.l. been mentioned in the Writ Petitions and so it is not possible to issue any rite of Mandamus to the electoral registration officers for the inclusion or exclusion of the names of those persons, as the case may be, in or from the electoral rolls. Thirdly, the authorities actually responsible for inclusion or exclusion of names are the electoral registration officers but they have not been made parties to the petition and so writ of Mandamus can be issued against them; and B it is not possible to make them parties so late.