The High Court dismissed a writ petition seeking mandamus for inclusion of the petitioner's name in the voters list to enable filing a nomination for the post of Mukhiya. Relying on statutory provisions and precedents prohibiting post-notification changes, the Court held the remedy lies in an election petition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.4723 of 2011
NIBHA DEVI .
Versus
THE STATE OF BIHAR & ORS .
For the Petitioner: Sri Ram Chandra Pandey, Adv.
Mr. Amit Anand, Adv.
For the State Election Commission: Mr. R.S. Pradhan, Sr. Adv.
Mr. Sanjeev Nikesh, Adv.
For the State : Mr. Sanjeev Kumar, S.C.12.
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2/ 25/03/2011 Heard learned counsel for the petitioner, the State and for the State Election Commission.
The petitioner seeks Mandamus for inclusion of
her name in Ward No.8, Gram Panchayat Raj- Kanhauli in Vishnu Dutt Prakhand, District- Muzaffarpur to enable her
not only to cast her vote but also file nomination for the post of Mukhiya.
Learned counsel for the petitioner submits that her name figured in the voters list of 1995, 2009 and 2010. In the voters list of 2010 her name as also her family members were deleted by stamping upon the 2010 voters list. On 19.1.2011 an application was given to the State Election Commissioner for adding the names apart from 52
others wrongly left out. No action having been taken the petitioner filed the present writ application. Relying upon a Bench decision reported in AIR 1960 Patna 589 (Ram Chandra Prasad Vs. Sub-divisional Magistrate, Madhunabi & Ors.) it was contended that a wrong exercise of power
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debarring a person from filing nomination to contest the Panchayat election is amenable to the jurisdiction of the Court under Article-226 of the Constitution and there cannot be any compulsion to hold that these are matters amenable to an election petition only upon conclusion of the elections with all its attendant consequences.
Learned counsel for the State and the State Election Commission have contended that the deletion in the voters list of 2010 has been done by the Election Commission of India. If the deletion is wrong, it may be amenable to other corrective action. Once the Panchayat elections have been notified under Section-124 of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as the Act), no changes in the electoral roll can be made under Section126 of the Act. The only remedy available was in an election petition as held by a Division Bench in 2001 (3) P.L.J.R. 677 (The State Election Commissioner Vs. State of Bihar).
In the case of Ram Chandra Prasad (supra) the rejection of the nomination was held to suffer from an error apparent on the face of the record. It did not relate to inclusion of name in the voters list after finalization of the electoral roll to enable filing of a nomination. The case is completely distinguishable on facts.
If a nomination had been filed by the petitioner
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and had been rejected under Rule-35 or 41 of the Bihar Panchayat Election Rules suffering from error apparent on the face of record a different question for consideration may have arisen.
The facts of the present case seeking the relief for inclusion of the name in the voters list to facilitate a nomination are more similar to that considered by the Division Bench in the case of the State Election Commissioner (supra). The Writ Court had directed preparation of a supplementary voters list of those whose names had figured in the earlier electoral roll but was missing in the fresh electoral roll after the elections had been notified and dates for poll fixed. It was further ordered that the supplementary voters list shall not be used for filing nominations or for restoration or revival of a nomination paper earlier rejected.
In appeal, the Letters Patent Bench noticed Section-137A of the Bihar Panchayat Raj Act, 1995 as amended by Act-5 of 1996. It provided that no change shall be made in the electoral roll after the notification of the date for Panchayat election by the Governor under Section-136A of that Act. The provisions are similar to Sections-124 and 126 of the present Act noticed above.
The Division Bench then proceed to hold at paragraph-21 as follows:-
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“21. Once the process of election has started, any interference by the Court under Article 226 of the Constitution with the process of election on the ground of breach of statutory provisions in preparation of the voters’ list is not permissible in law. If this will be allowed to be done, the same will delay the election. In other words, it will interrupt and obstruct the process of election. Such question has to be postponed till the election is over. Non-compliance of the provisions of the Act or Rules or the Order may be a ground to declare the election to be void after the election is over if the result of the election in so far as it concerns a returned candidate has been materially affected. Any interference by this Court on the said ground will interrupt or delay the election, which is being held after 22 years.”
The Court therefore holds that the relief of the
nature sought cannot be granted in view of the statutory conditions contained in the Bihar Panchayat Raj Act, 2006 and the remedy of the petitioner, if any, lies in an election petition only.
The writ application stands dismissed.
KC
( Navin Sinha, J.)
3 issues framed by the court
whether the High Court can entertain a writ petition for inclusion of names in the voters list after the election notification
whether the petitioner is entitled to a remedy in election petition for non-inclusion in the voters list
whether interference by the Court under Article 226 during the election process regarding voter list preparation is permissible in law
Colour shows how this judgement treated each authority
Ram Chandra Prasad Vs. Sub-divisional Magistrate, Madhunabi & Ors.Distinguished¶13
AIR 1960 Patna 589 (Ram Chandra Prasad Vs. Sub-divisional Magistrate, Madhunabi & Ors.) · Who else cites this
State Election Commissioner Vs. State of BiharRelied on¶16
2001 (3) P.L.J.R. 677 (The State Election Commissioner Vs. State of Bihar)
3 provisions across 2 enactments
Nibha Devi
State of Bihar
State Election Commission
Navin Sinha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court