Disposed

Rinchin Tashi and 2 Ors. v. the State of Arunachal Pradesh and 5 Ors.

Gauhati HC2 Dec 2020WA/192/2020

Case brief

AI extract

What is this about?

This writ appeal challenges the dismissal of an interlocutory application seeking voting and nomination rights. The court held that the changed order does not bar exercise of statutory rights under Sections 20 and 57, directing authorities to consider such claims based on the statute.

What did the court decide?

Disposed of the writ appeal and clarified that petitioners may approach competent authorities for voting and nomination rights.

Rinchin Tashi and 2 Ors. Vs the State of… — Pension and Retirement Benefits | Gauhati HC (2020)

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GAHC010175202020

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WA/192/2020

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RINCHIN TASHI AND 2 ORS.

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S/O- KESANG GOMBU, PERMANENT RESIDENT OF VILL.- LUBRANG, P.O. AND P.S. DIRANG, DIST.- WEST KAMENG, ARUNACHAL PRADESH.

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2: SMT. TSEDAR DREMA W/O- SHRI RINCHIN TASHI PERMANENT RESIDENT OF VILL.- LUBRANG P.O. AND P.S. DIRANG DIST.- WEST KAMENG ARUNACHAL PRADESH.

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3: SMTI. TSERING DROMA D/O- SHRI RINCHIN TASHI PERMANENT RESIDENT OF VILL.- LUBRANG P.O. AND P.S. DIRANG DIST.- WEST KAMENG ARUNACHAL PRADESH

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VERSUS

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THE STATE OF ARUNACHAL PRADESH AND 5 ORS. REP. BY THE SECRETARY, RURAL DEVELOPMENT AND PANCHAYAT RAJ, ITANAGAR, ARUNACHAL PRADESH.

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2:THE DEPUTY COMMISSIONER BOMDILA WEST KAMENG ARUNACHAL PRADESH.

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3:THE ELECTORAL REGISTRATION OFFICER-CUM-ADDITIONAL DEPUTY COMMISSIONER DIRANG WEST KAMENG ARUNACHAL PRADESH.

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4:THE ASSISTANT ELECTORAL REGISTRATION OFFICER 10-LISH SEGMENT DIRANG WEST KAMENG ARUNACHAL PRADESH. 5:SRI TOGPE BAPU ASSISTANT ELECTORAL REGISTRATION OFFICER BLOCK DEVELOPMENT OFFICE P.O. AND P.S. DIRANG WEST KAMENG ARUNACHAL PRADESH. 6:SRI SINGCHUNG S/O- LATE NETAN R/O- VILL.- LUBRANG P.O. AND P.S. DIRANG DIST.- WEST KAMENG ARUNACHAL PRADESH

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Advocate for the Petitioner : MR B KAUSHIK

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Advocate for the Respondent : GA, AP

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BEFORE

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HONOURABLE THE CHIEF JUSTICE (ACTING) HONOURABLE MR. JUSTICE MANISH CHOUDHURY

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ORDER

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Date : 02-12-2020 [N. Kotiswar Singh, CJ (Acting)]

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Heard Mr. B. Kaushik, learned counsel for the appellants/petitioners. Also heard Mr. Goswami, learned Additional Advocate, State of Assam for respondent nos. 1 – 4. As regards private respondent nos. 5 and 6, we are of the view that in considering the nature of the order which is going to be passed now, their presence may not be necessary as their interest will be taken care of by the official respondent nos. 1 – 4.

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2. Only the relevant facts as may be necessary for disposal of this appeal is adverted to herein below.

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3. The appellants/petitioners had approached this Court by filing a writ petition, W.P.(C) No. 12(AP)/2020 at Itanagar Permanent Bench seeking, amongst other, reliefs not to delete the names of the appellants from the Electoral Roll of the Panchayat Electoral Roll, 2020 of Lubrang village under GPM-064 Broksarthang (Segment-III) Gram Panchayat Constituency. This Court on 09.01.2020, after hearing the parties passed the following order which will sufficiently illustrate the issues involved also. Accordingly, the same is reproduced herein below :

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“2. This writ petition is directed against the deletion of name of the petitioner Nos. 1, 2 & 3 from the Panchayat Electoral Roll of 2020 of Lubrang Village under GPM-064 Broksarthang (SEG-III) Gram Panchayat Constituency by the Assistant Electoral Registration Officer, 10-Lish Segment, vide Supplementary Electoral Roll 2020, Basic E/Roll of 2003 integrated upto 2018, name of village-Lubrang Village, Part No. 11, Sub Part11/III (Annexure C to the writ petition).

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The case of the petitioners, as projected in the writ petition, is that the names of writ petitioner Nos. 1, 2 & 3 existed in the Electoral Roll vide House No. E-39 since the year 2003-18. However, the Assistant Electoral Registration Officer, 10-Lish Segment, have deleted the names of the petitioner Nos. 1, 2 & 3 from the Electoral Roll of 2020 of the above referred Gram Panchayat Segment and Village, vide Annexure C to the writ petition, without following the due procedure of law as prescribed under the Panchayati Raj Act and the Rules and also without giving an opportunity of hearing to the petitioners as contemplated under the Panchayati Raj Act and the Rules.

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As against the deletion of the names of the petitioners from the Panchayat Electoral Roll, as referred to above, the petitioners had preferred an Appeal before the Deputy Commissioner, West Kameng District, Arunachal Pradesh, under Section 115 of the Arunachal Pradesh Panchayati Raj Act. The Deputy Commissioner, however, without deciding the Appeal, filed by the petitioners, on merit had by a letter dated 12.12.2019, vide No. BPR/REV-03/2019-20, had relegated the matter to the Additional Deputy Commissioner-cum-Electoral Registration Officer (PR), Dirang, West Kameng District, to make an enquiry and submit the decision recorded therein to the Deputy

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Commissioner, West Kameng District, within a period of 7 (seven) days. In pursuance thereof, the ADC-cum-ERO, Dirang, by an order dated 16.12.2019, vide No. DRG/PR02/2017-18/1474-88, had issued a hearing notice to the petitioners and directed the petitioners to appear before the ADC-cum-ERO on 18.12.2019. Subsequently, as directed, the petitioners appeared before the ADC-cum-ERO, Dirang, on that day, but the petitioners were not allowed to present their case and no documents, produced by the petitioners, were also taken on record by the ADC-cum-ERO, Dirang.

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The learned counsel for the petitioners submits that correction/deletion of the Electoral Roll under the Panchayati Raj Act and the Rules can only be made in accordance with Section 113 of the Arunachal Pradesh Panchayati Raj Act as well as Rule 27 of the Arunachal Pradesh Panchayati Raj (Preparation of Electoral Roll) Rules 2002. 6. For ready reference, Section 113 of the Arunachal Pradesh Panchayati Raj Act, 1997 and Rule 27 of the Arunachal Pradesh Panchayati Raj (Preparation of Electoral Roll) Rules, 2002, referred to by the learned counsel for the petitioners, is quoted herein below –

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“113. If the Electoral Registration Officer for a constituency, on application made to him, or on his own motion, is satisfied after such enquiry as he thinks fit that any entry in the electoral roll of the constituecncy:

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(a) is erroneous or defective in any particular; or

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(b) 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-

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The Electoral Registration Officer shall, subject to such general or special directions, if any, as may be given by the State Election Commissioner in this behalf, amend or delete the entry:

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Provided that before taking any action on the ground under clause (a) or any action under clause (b) on the ground that the person concerned has

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ceased to be ordinarily resident in that 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.

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If it appears to the Electoral Registration Officer at any time before final publication of the roll that owing to in advertence or error or otherwise, the names of dead persons who cease to be, or are not, ordinarily residents in the Constituency or all persons who are otherwise not entitled to be registered in that roll, have been included in that remedial action should be taken under this rule, the Electoral Registration Officer, shall –

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(a) prepare a list of the names and other details of such electors;

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(b) exhibit on the notice board of his Officer a copy o the list together with a notice as to the time and place at which the question of deletion of these names from the roll will be considered, and also publish the list and the notice in such other manner as he may think fit; and

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(c) after considering any verbal or written objections that may be preferred, decide whether all or any of the names should be deleted from the roll:

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Provided that before taking any action under this rule in respect of any person on the ground that he had ceased be of, or is not ordinarily resident of the constituency, or is otherwise not entitled to be registered in that roll, the Electoral Registration Officer shall make every endeavour to give him a reasonable opportunity to show cause why the action proposed should not be taken in relation to him.”

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On a conjoint reading of the Section 113 of the Panchayati Raj Act and the Rule 27 of the Arunachal Pradesh Panchayati Raj (Preparation of Electoral Roll) Rules 2002, it is noticed that before any correction or deletion is made with regard to the names

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already included in the Electoral Roll of Panchayati Raj, it has to be preceded by an enquiry by the Electoral Registration Officer and thereafter, provide a reasonable opportunity of hearing to the persons whose names are proposed to be deleted. In the instant case, it is not discernible from the materials on record that the procedure prescribed in the Panchayati Raj Act and the Rules, as referred to herein above, was followed by the respondent authorities while deleting the names of the petitioner Nos. 1, 2 & 3 from the Panchayat Electoral Roll of 2020 of Gram Panchayat Segment and the Village, referred to herein above.

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In view of the above, I am of the view that the writ petitioners have made out a prima facie case requiring passing of an appropriate interim order in the present writ petition.

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Issue notice, returnable within 3 (three) weeks.

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As Mr. R. H. Nabam, learned Additional Advocate General, Arunachal Pradesh, has entered appearance and accepted notice on behalf of the respondent Nos. 1, 2, 3 & 4, no formal notice need be issued. However, he shall be provided with requisite extra copies of the petition along with the relevant annexures appended thereto, during the course of the day.

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Learned counsel for the petitioner shall take steps for causing service of notice upon the respondent Nos. 5 & 6 by registered post with A/D as well as by usual process within 3 (three) days. 12. Till the returnable date, it is provided that the name of the petitioner Nos. 1, 2 & 3, which had existed/included in the Panchayat Electoral Roll of 2020 of Lubrang Village under GPM-064 Broksarthang (SEG-III) Gram Panchayat Constituency in a basic E-Roll of 2003 integrated up to 2018, shall not be treated to have been deleted and also shall not be deleted without following the procedure prescribed under the Panchayati Raj Act and the Rules therein.”

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4. Thus, by the interim order passed by this Court on 09.01.2020, this Court directed that the names of the appellants which had existed and were included in the Panchayat Electoral Roll of 2020 of the aforesaid village shall not be treated to have been deleted and also shall

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not be deleted without following the due process prescribed under the Statute and the Rules.

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5. The inference is very clear that the names of the appellants/petitioners shall be deemed to be continued to be included in the aforesaid Panchayat Electoral Roll. It appears that the appellants/petitioners as a measure of abundant caution approached this Court seeking clarification of the aforesaid order being apprehensive that they may not be allowed to cast their vote or file nomination papers to contest in the ensuing General Election to the Panchayat Institutions and accordingly, I.A.(C) No. 128/2020 was filed and this Court passed the following order on 24.11.2020 dismissing the said application which is being challenged in this writ appeal:

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“This is an application for allowing the applicants/writ petitioners to cast their vote as a voter of Lubrang village under GPM-064 Broksarthang (Segment-III), Gram Panchayat Constituency as well as to allow the applicant No. 3/writ petitioner No. 3 to submit nomination papers to contest the ensuing General Election to Panchayati Raj Institutions of Arunachal Pradesh, in terms of order dated 09.01.2020 passed by this Court in WP(C) No. 12 (AP)/2020.

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The order dated 09.01.2020 passed in WP(C) No. 12 (AP)/2020 is an interim order passed by this Court, while issuing notice to the respondents, wherein it was provided that till the returnable date, the name of the petitioner Nos. 1, 2 & 3, which had existed/included in the Panchayat Electoral Roll of 2020 of Lubrang village under GPM-064 Broksarthang (Segment-III), Gram Panchayat Constituency in a basic E-Roll of 2003 integrated up to 2018, shall not be treated to have been deleted and also shall not be deleted without following the procedure prescribed under the Panchayati Raj Act and the Rules therein.

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On perusal of the interim order dated 09.01.2020 as indicated herein above, it does not per-se, confer any right to the applicant No. 3/writ petitioner No. 3 either to cast her vote as voter of Lubrang village under GPM-064 Broksarthang (Segment-III), Gram Panchayat Constituency nor it has per-se confered any right to the applicant No. 3/writ petitioner No. 3 to file nomination papers to contest the ensuing General Election to Panchayati Raj Institutions of Arunachal Pradesh.

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In view thereof, prayer made in this Interlocutory Application cannot be granted to the applicant/writ petitioners.

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Interlocutory Application accordingly, stands dismissed.”

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6. The grievances of the appellants/petitioners is that by virtue of the aforesaid order passed on 24.11.2020, the benefit granted by the interim order by the Court on 09.01.2020 has been virtually obliterated.

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7. Learned counsel for the appellants/petitioners submits that as provided under Section 20(1) of the Arunachal Pradesh Panchayat Raj Act, 1997 (‘the Act’, for short) every person whose name appears in the voters list will be entitled to vote. Section 20 of the Act reads as follows :

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(1) Every person whose name appears in the voters list relating to a constituency shall, subject to the other provisions of this Act, be entitled to vote, at any election which takes place in that constituency while the voters list remains in force and no person whose name does not appear in such voters list shall vote at any such election.

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(2) No person shall vote at an election under this Act in more than one constituency or more than once in the same constituency and if he does so, all his votes shall be invalid.

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8. Similarly it has been submitted that the right of any voter to file nomination paper cannot be denied except on the grounds as provided under Section 57 of the Act which is reproduced herein below :

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A person shall be disqualified for being chosen as, and for being a member of the Gram if he

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(a) is not a citizen of lndia; or

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(b) is nor twenty one years of age ; or

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(c) has been dismissed from the services of Central or any State Government or Gram Panchayat, Anchal Samiti and Zilla Parishad or any other local authority for misconduct, unless a period of five years has elapsed from such dismissal ; or

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(d) if he is in the service of or holds any office of profit under the Central Government or any State Government or autonomous body or any Zilla Parishad/Anchal Samiti or any Gram Panchayat;

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(e) has directly or indirectly any share or monetary interest in any work done by, or to,

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(f) the Gram Panchayat/Anchal Samiti/Zilla Parishad or in any contract or employment with, under, or by or on behalf of the Gram Panchayat/Anchal Samiti/Zilla Parishad; or

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(g) is an undischarged insolvent ; or

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(h) is of unsound mind and stands so declared by a competent Court ; or

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(i) has been convicted by a criminal court of any offence involving moral turpitude and sentenced to imprisonment for not less than six months and five years have not elapsed since his release ;

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(j) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State:

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Provided that no person shall be disqualified on the ground that he is less than twenty five years of age, if he has attained the age of twenty one years ;

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(k) if he is so disqualified by or under any law made by the Legislature of the State;

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(l) if arrears of any kind are due by him to the Gram Panchayat/Anchal Samiti/Zilla Parishad and Government:

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Provided that the disqualifications specified in clauses (d) and (e) shall not apply to an exofficio members.

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9. At this stage, the appellants/petitioners have not yet filed nomination papers and the question of casting of votes also does not arise. From the above, it is clear that the right to cast vote as well as right to file nomination papers will be governed by the aforesaid provisions of Section 20 and Section 57 of the aforesaid Act. The occasion for the aforesaid acts is yet to arise.

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10. On perusal of the order dated 24.11.2020 passed by this Court challenged herein, it appears that the appellants/petitioners had approached this Court for allowing the appellants/petitioners to cast their vote and to allowing the applicant to submit papers and no direction can be issued for allowing such acts for the reason that anyone who wishes to file

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nomination papers has to do so by filing in terms of Section 57 of the Act and also the right to cast vote also will be governed by Section 20 of the Act. No direction can be issued unless anyone is prevented from doing so.

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11. Accordingly, we dispose of this writ appeal by observing that the order passed by this Court on 24.11.2020 in I.A.(C) No. 128/2020 will not come in the way of any of the appellants/petitioners to cast vote in terms of Section 20 or file nomination in terms of Section 57 of the aforesaid Act. In other words, if any of the appellants/petitioners approaches the competent authority for filing nomination or cast vote, their right shall be considered purely in terms of the aforesaid Section 57 and Section 20 respectively and the order passed by this Court on 24.11.2020 in I.A.(C) No. 128/2020 will not come in the way of exercise of such right of the appellants/petitioners and also in terms of the order passed by this Court on 09.01.2020. We also make it clear that the competent authorities would be at liberty to proceed with the matter in accordance with the aforesaid provisions of Section 20 and Section 57 of the Act and any other relevant provisions of law governing the field.

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12. With the above observation and clarification, the writ appeal stands disposed of.

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JUDGE CHIEF JUSTICE (ACTING)

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Comparing Assistant

Rinchin Tashi and 2 Ors. v. the State of Arunachal Pradesh and 5 Ors.

Case brief

What is this about?

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Rinchin Tashi and 2 Ors. v. the State of Arunachal Pradesh and 5 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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