SUNIL KUMAR KORI & ANR. Vs. GOPAL DAS KABRA & ORS.ETC.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 9728-9729 of 2016, Judgment Date: Sep 27, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 9728-9729 of 2016
(Arising out of SLP (C) No.20677-20678 of 2016)
SUNIL KUMAR KORI & ANR. .... Appellant(s)
Versus
GOPAL DAS KABRA & ORS. ETC. …. Respondent(s)
With
CIVIL APPEAL No. 9730-9731 of 2016
(Arising out of SLP (C) No.20687-20688 of 2016)
CANTONMENT BOARD, PANCHAMARHI .... Appellant(s)
Versus
GOPAL DAS KABRA & ORS. …. Respondent(s)
J U D G M E N T
L. NAGESWARA RAO, J.
Leave granted.
The issue that arises for consideration in the above appeals is the
right to vote of persons living in illegally constructed buildings in a
Cantonment area. Respondent No. 1 in the appeals is a permanent resident of
Panchamarhi, who contested election to the Cantonment Board, Panchamarhi in
the year 2008 and was defeated by a margin of 292 votes. He filed Writ
Petition No. 7169 of 2008 in the High Court of Madhya Pradesh at Jabalpur,
seeking a direction to the authorities to prepare the electoral rolls of
the Cantonment Board, Panchamarhi strictly in accordance with Rule 10 (3)
of the Cantonment Electoral Rules, 2007 (hereinafter referred to as ‘the
Rules’). The said Writ Petition was disposed of on 08.07.2010 with a
direction to the Cantonment Board, Panchamarhi to prepare the electoral
rolls strictly in accordance with Rule 10 (3) for the years 2010-2011. The
said judgment dated 08.07.2010 in Writ Petition No. 7169 of 2008 was
confirmed by a Division Bench in Writ Appeal No. 798 of 2010 by a judgment
dated 24.09.2010. Rejecting the submissions of the Cantonment Board, the
Division Bench held as follows:
“In our opinion, the appellants are under no obligation in view of Rule 10
(3) of the Rules to allot house numbers in respect of structures which are
unauthorized or illegal, substantial compliance of provisions of Rule 10
(3) is required to be made and that can be done by marking the
encroachments as unauthorized construction and mention them accordingly in
the electoral roll for the purpose of compliance of Rule 10 (3) of the
Rules.”
2. Review Petition No. 972 of 2012 was filed for modification of the
judgment dated 24.09.2010 in Writ Appeal No. 798 of 2010 which was allowed
on 02.08.2013 and the following words were deleted:
“And mention them accordingly in the electoral roll for the purpose
of compliance of Rule 10 (3) of the Rules.”
A direction was given to the Cantonment Board to proceed with the
preparation of electoral rolls in accordance with the provisions of the Act
and the Rules.
3. Thereafter, two separate voters lists were prepared by the Cantonment
Board. One list contained the names of persons staying in houses with
numbers and the second list contained names of persons living in
unauthorised houses without numbers. The First Respondent in the above
appeals filed Writ Petition No. 20038 of 2013, questioning the preparation
of two voters lists. He also filed Contempt Petition No. 2379 of 2013 for
willful disobedience of the directions given by the High Court for
preparation of voters list in Writ Petition No. 7169 of 2008. As the
second voters list containing the names of the encroachers was withdrawn by
the Board, Writ Petition No. 20038 of 2013 was disposed of and Contempt
Petition No. 2379 of 2013 was closed on 17.02.2014. A notification dated
05.03.2015 was issued by the Government of India under Section 15 of the
Cantonment Act, 2006 (hereinafter referred to as ‘the Act’) directing
elections to be conducted to Panchamarhi Cantonment Board on 17.05.2015.
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.
6. We have heard Mr. Vikas Singh, learned Senior Counsel appearing for
the Cantonment Board, Ms. Kiran Suri, learned Senior Counsel appearing for
the other Appellants, Mr. P.S. Patwalia, learned Additional Solicitor
General appearing for Union of India and Mr. Harsh Parashar, Advocate for
Respondent No. 1 in both the appeals. Mr. Vikas Singh submitted that
Sections 27 and 28 of the Act provide for preparation of electoral rolls
and qualifications of the electors respectively. According to him, the
nature of residence of a person in the Cantonment area is not relevant.
Even an encroacher is entitled for inclusion in the electoral roll if he is
not less than 18 years of age and has resided in the Cantonment area for a
period of not less than six months, preceding the qualifying date. He
submitted that Section 28 (2) provides for disqualifications and that
placing a restriction on the right to vote of an encroacher tantamounts to
an additional disqualification. He also submitted that the provisions of
the Act pertaining to elections have to be strictly construed and there is
no place for either equity or common law to be applied. He also stated
that Rule 10 which provides for preparation of the electoral roll is
procedural in nature and the substantive rights conferred on a person by
the statute cannot be defeated by the Rule. Mr. Vikas Singh contended that
the Writ Petition challenging the voters list was not maintainable. He
relied upon Rule 54 which provides for an election to be challenged only by
way of an election petition. He also submitted that the provisions
pertaining to preparation of electoral rolls in the Cantonment Act, 2006
and the Representation of the People Act, 1950 are in pari materia. He
further submitted that the election process was complete and the results
were also declared by the time the Writ Appeal was heard by the High Court,
in which event the High Court ought not to have set aside the election.
7. Ms. Kiran Suri, learned Senior Counsel appearing for the other
Appellants adopted the submissions made by Mr. Vikas Singh. She further
submitted that the Appellants in Civil Appeal No. …… of 2016 arising out of
SLP (C) No. 20677-20678 of 2016 were not parties to the Writ Petition and
the Writ Appeal. They filed SLP (CC) No. 17256-17257 of 2015 against the
judgment of the Division Bench dated 24.04.2015 in Writ Appeal No. 204 of
2015. Pursuant to the liberty given by this Court, they filed a Review
Petition before the High Court. She also stated that the Appellants
secured majority in the elections that were conducted on 17.05.2016
pursuant to interim order passed by the High Court on 24.04.2015. She
urges that the High Court judgment warrants interference in view of the
fact that the Appellants in Civil Appeal No. ………. of 2016 were already
declared elected with substantial majority. Mr. P.S. Patwalia, learned
Additional Solicitor General, supported the Appellants and submitted that
the judgment of the High Court is required to be set aside as the elections
to the Cantonment Board were held and results declared.
8. Mr. Harsh Parashar, Advocate appearing for Respondent No. 1 submitted
that one of the objects of the Cantonment Act is removal of encroachments.
He supported the judgment of the High Court and submitted that Section 2
(zt) defines ‘residence’ which clearly shows that only lawful residents are
entitled for inclusion in the voters list. He also submitted that the
judgment of the High Court in Writ Petition No. 7169 of 2008 became final
and the Cantonment Board prepared the voters list contrary to Rule 10 (3)
of the Rules and the directions issued by the High Court in the said
judgment. As the elections to the Cantonment Board were conducted pursuant
to an interim order which was made subject to the outcome of the Writ
Appeal, no benefit can be claimed by the Appellants from such election. He
also submitted that an encroacher on Cantonment land and an inhabitant of
an illegal structure cannot claim any right to vote as the statute does not
confer such a right. He referred to Rule 55 of the Rules to submit that an
election petition cannot be filed for inclusion or non inclusion in the
electoral roll. According to him, the Writ Petition challenging the
electoral roll was maintainable. As the directions given by the High Court
were in conformity with the provisions of the Cantonment Act and the Rules
made thereunder, interference with the judgment of the High Court is
unwarranted.
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.
10. This Court in Jyoti Basu & Ors v. Debi Ghosal & Ors reported in
(1982) 1 SCC 691 held that “A right to elect, fundamental though it is to
democracy, is, anomalously enough, neither a fundamental right nor a common
law right. It is pure and simple, a statutory right.”
11. As the right to elect is dealt with in Section 27 and 28 of the Act
they are reproduced as under:
“27. Electoral rolls. - (1) The Board or, where a Board is not constituted
in any place declared by notification under sub-section (1) of section 3 to
be a cantonment, the Officer Commanding the station, shall prepare and
publish an electoral roll showing the names of persons qualified to vote at
elections to the Board and such roll shall be prepared, revised and finally
published in such manner and on such date in each year as the Central
Government may by rule prescribe.
(2) Every person whose name appears in the final electoral roll
shall, so long as the roll remains in force, be entitled to vote at an
election to the Board, and no other person shall be so entitled.
(3) When a cantonment has been divided into Wards, the electoral roll
shall be divided into separate lists for each Ward.
(4) If a new electoral roll is not published in any year on the date
prescribed, the Central Government may direct that the old electoral roll
shall continue in operation until the new roll is published.
28. Qualification of electors. - (1) Every person who, on such date as may
be fixed by the Central Government in this behalf by notification in the
Official Gazette hereinafter in this section referred to as "the qualifying
date", is not less than eighteen years of age and who has resided in the
cantonment for a period of not less than six months immediately preceding
the qualifying date shall, if not otherwise disqualified, be entitled to be
enrolled as an elector.
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.
(2) A person notwithstanding that he is otherwise qualified, shall
not be entitled to be enrolled as an elector if he on the qualifying date-
(i) is not a citizen of India, or
(ii) has been adjudged by a competent court to be of unsound mind, or
(iii) is an undischarged insolvent, or
(iv) has been sentenced by a Criminal Court to imprisonment for a
term exceeding two years for an offence which is declared by the
Central Government to be such as to unfit him to become an elector or
has been sentenced by a Criminal Court for any offence under Chapter IXA
of the Indian Penal Code (45 of 1860):
Provided that any disqualification incurred by a person under clause
(iv) shall terminate on the lapse of three years from the expiry of the
sentence or order.
(3) If any person having been enrolled as an elector in any electoral
roll subsequently becomes subject to any of the disqualifications referred
to in sub-section (2), his name shall be removed from the electoral roll
unless, in the case referred to in clause (iv), the disqualification is
removed by the Central Government.”
12. Section 27 of the Act prescribes the manner of preparation, revision
and publication of electoral rolls. It is clear from Section 28 that a
person who is not less than 18 years of age and who has resided in a
Cantonment area for a period of not less than six months immediately
preceding the qualifying date shall be entitled to be enrolled as an
elector. The word ‘resided’ is not defined in the Act, but its grammatical
variation ‘resident’ is defined in Section 2 (zt) which is as follows:
“(zt) "resident", in relation to a cantonment, means a person
who maintains therein a house or a portion of a house which is at all times
available for occupation by himself or his family even though he may
himself reside elsewhere, provided that he has not abandoned all intention
of again occupying such house either by himself or his family;”
The other relevant definition is in Section 2 (zc) which is as follows:
(zc) "inhabitant", in relation to a cantonment, or local area means any
person ordinarily residing or carrying on business or owning or occupying
immovable property therein, or declared as such by the Chief Executive
Officer and in case of a dispute, as decided by the District Magistrate;
A perusal of the definition of ‘resident’ would show that it covers only a
person who maintains a house or a portion of the house which is at all
times available for occupation by himself or for his family, even if he is
residing elsewhere. The point to be considered is whether the house to be
maintained by a person should be a house built after taking previous
sanction of the Board. As per Section 2 (d), a building means a house.
Section 234 of the Act provides that no person shall erect a building on
any land in a Cantonment without the previous sanction of the Board.
According to Section 247 illegal erection of a building is an offence,
punishable with a fine which may extend to fifty thousand rupees. A
building erected illegally is liable to be demolished as per a direction
that may be issued under Section 248 of the Act. As per the definition of
the word ‘resident’ a house which is to be maintained by a person at all
times for his or his family’s occupation is a building constructed after
previous sanction of the Board. Only a person who resides in such a
building is entitled for registration as a voter. We have considered the
other provisions of the Act as it is settled law that the Court is entitled
and indeed bound to consider any other parts of the Act which throw light
on the intention of the legislature while construing the terms of a
provision. See Municipal Corporation of City of Hubli v. Subha Rao
Hanumatharao Prayag reported in (1976) 4 SCC 830 at paragraph 9.
13. The learned Senior Counsel for the Cantonment Board submitted that
the provisions pertaining to election in the Act have to be strictly
construed with which proposition we agree. In Banwari Dass v. Sumer Chand
reported in (1974) 4 SCC 817 at paragraphs 20 and 21 it was held by this
Court that statutory provisions of election law are to be strictly
construed and its requirements strictly observed. It was further submitted
by the learned Senior Counsel for the Appellants that the principles of
equity and common law are strangers to election law. That an Election
Petition is not an action at common law, nor in equity is no more res
integra. The said principle is applicable to adjudication of election
disputes and not for interpretation of election law. Construing Section 28
on the basis of the above well accepted principles of statutory
construction, we are of the opinion that the word ‘resident’ should receive
a narrow construction in comparison to its synonym ‘inhabitant’. We are of
the opinion that a person should be a resident of a legally constructed
house for being entitled to be enrolled as an elector.
14. The word ‘inhabitant’ as defined in Section 2 (zc) of the Act is very
wide, covering persons who ordinarily reside or carry on business or occupy
immovable property. Whereas the word ‘resident’ means a person who
maintains a house at all times which is available for occupation. As
discussed above, the house that he maintains has to be one which was
constructed after obtaining a sanction in accordance with the provisions of
the Act. There is no restriction in the width of the word ‘inhabitant’ and
even persons staying in houses which are illegally constructed will fall
within its purview. The fact that the word ‘resided’ and not ‘inhabited’
is employed in Section 28 for the purpose of eligibility of persons to
become voters makes it clear that persons who were ordinarily residing and
carrying on business for temporary periods in illegally constructed houses
are not eligible to vote. All persons living in the Cantonment area are
covered by the expression ‘inhabitant’ and their rights are dealt in the
Act. For example, Section 70 provides for objections to be filed by an
inhabitant to the preliminary proposals for imposition of a tax under
Section 66. Likewise, Section 157 of the Act contemplates safety measures
in case of outbreak of epidemic diseases covering inhabitants. Likewise,
Section 180 deals with free patients and Section 197 referring to supply of
water mention that persons to be benefited would be inhabitants.
15. It is well settled principle of interpretation that different words
will have different meanings, depending upon the context. Though the words
‘resident’ and ‘inhabitant’ are understood to be synonyms, for the purpose
of the Act they carry different meanings. In Gibson v. Skibs A/S Marina
and Orkla Grobe A/B and Smith Coggins, Ltd. reported in (1966) 2 All ER 478
it was held that “[p]rima facie one would expect that when two different
words, although practically synonymous in ordinary use, are employed in
different parts of the same regulation dealing with the same kind of topic,
they are intended to have some different meaning.” This Court held in
Kailash Nath Agarwal v. Pradeshiya Industrial & Investment Corporation of
UP Ltd. reported in (2003) 4 SCC 305 at paragraph 20 that “[t]he general
rule is that when two different words are used by the same statute, prima
facie one has to construe these different words as carrying different
meanings.”
16. Mr. Vikas Singh, learned Senior Counsel submitted that the
provisions of the Representation of the People Act, 1950, the Registration
of Electors Rules, 1960 and the provisions contained in Section 28 of the
Act are similar. A person who ordinarily resides in a constituency is
entitled to be registered as a voter in accordance with Section 19 of the
Representation of the People Act, 1950. The phrase ‘ordinarily resident’ is
defined in Section 20 of the Representation of the People Act, 1950 which
reads as follows:
20. Meaning of "ordinarily resident".- (1) A person shall not be deemed to
be ordinarily resident in a constituency on the ground only that he owns,
or is in possession of, a dwelling house therein.
(1A) A person absenting himself temporarily from his place of
ordinary residence shall not by reason thereof cease to be ordinarily
resident therein.
(1B) A member of Parliament or of the Legislature of a State
shall not during the term of his office cease to be ordinarily resident in
the constituency in the electoral roll of which he is registered as an
elector at the time of his election as such member, by reason of his
absence from that constituency in connection with his duties as such
member.
In Election Commission of India and Anr. v. Dr. Manmohan Singh and Ors.
reported in (2000) 1 SCC 591 this Court approved the findings of the High
Court on the interpretation of word ‘ordinarily resident’ which read as
under:
“87. Accordingly, this writ application is disposed of holding as follows:
(i) That the ‘ordinarily resident’ in a constituency as mentioned in
the Representation of the People Act, 1950 shall mean a habitual resident
of that place or a resident as a matter of fact in regular, normal or usual
course. It means an usual and normal resident of that place. The residence
must be permanent in character and not temporary or casual. It must be as
above for a considerable time, he must have the intention to dwell
permanently. He must have a settled abode at that place for a considerable
length of time for which a reasonable man will accept him as the resident
of that State.
(ii) A person holding a declared office as provided by the Act of
1950 can file a declaration in Form 6 and such a declaration shall have to
be accepted as correct and the burden does not lie on such a person to
produce evidence 14 to the contrary; that burden lies on the authority who
disputes it, regarding holding of declared office.
(iii) Apart from inquiry regarding holding a declared office, such a
declaration made by the holder of declared office cannot be subjected to
any inquiry as the statute by creating a deeming provision/ fiction has
given that privilege/right to the holder of a declared office to make
declaration regarding ‘ordinarily residence’ of a place that must be deemed
to be final.
(iv) The orders dated 1-3-1994 (Annexure J), notice dated 2-2-1994
and 16-2-1994 (Annexures D and F) and the order dated 3-3-1994 (Annexure I)
shall stand quashed being without authority of law and having been issued
without jurisdiction, and in violation of laws as indicated above.”
17. The scope of word ‘resident’ as defined in the Cantonment Act, 2006
is completely different from that of ‘ordinarily resident’ as defined in
the Representation of the People Act, 1950. The restrictive definition of
a ‘resident’ in the Act is peculiar to the Cantonments whereas the
definition of ‘ordinarily resident’ is very wide. Even if a person is
residing in an unauthorised structure he will be entitled to be included in
the electoral rolls under the Representation of the People Act.
18. Having considered the ambit of word ‘resident’ as defined by the Act
we proceed to deal with the Rules which provide for the manner of
preparation of the electoral rolls. The thrust of the Writ Petitions filed
by the First Respondent is that the electoral rolls have to be prepared
strictly in accordance with Rule 10 (3) of the Rules. For better
appreciation of the point it would be necessary to reproduce the relevant
Rules which are as follows:
“ CHAPTER II ELECTORAL ROLLS
8. Registration. No person shall be entitled to be registered in the
electoral roll for more than one Ward and no person shall be so registered
for any Ward more than once.
9. Qualification of elector. Every person who is eligible for enrolment as
an elector under sub-section (1) of section 28 of the Act, and is not
otherwise disqualified under sub-section (2) of the said section shall be
enrolled as an elector.
10. Preparation of electoral rolls .
(1) The Board or where a Board is not constituted, the Officer Commanding
the Station, shall prepare on Ist July of each year, in English and in the
language commonly used in the District in which Cantonment is located, an
electoral roll in Form I.
(2) The electoral roll shall be divided into separate parts for each Ward.
(3) The names of electors in each part of the roll shall be arranged
according to house numbers.
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.”
19. It is evident from a plain reading of Rule 10 (3) that the names of
electors shall be arranged according to house numbers. It is clear that
persons who are living in illegally constructed houses which are not
assigned any number will not be entitled for inclusion in the electoral
roll to be prepared in accordance with Rule 10 (3). Rule 10 (3) is not in
conflict with Section 28 of the Act. On the other hand, Rule 10 (3) is
strictly in conformity with Section 28 making only persons living in houses
with numbers eligible to vote. The submission on behalf of the Appellant
that Rule 10 (3) defeats the substantive rights conferred by Section 28 is
not correct and is rejected.
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.
22. The judgment dated 08.07.2010 in Writ Petition No. 7169 of 2008 was
confirmed by a Division Bench and it became final. A direction was issued
in the said Writ Petition for preparation of a voters list strictly in
accordance with Rule 10 (3). The said direction was confirmed by a
Division Bench in an appeal filed by the Cantonment Board. It was held
that the Board had no obligation to allot house numbers to unauthorized or
illegal structures and substantial compliance of Rule 10 (3) can be done by
marking the encroachments as unauthorized structures. Initially the
Division Bench also directed inclusion of persons living in such structures
in the electoral roll for the purpose of compliance of Rule 10 (3) after
mentioning that they are encroachers. In the review filed for modification,
the Division Bench deleted the said direction of inclusion of encroachers
in the voters list after mentioning that they are encroachers. There is no
substance in the contention of the Cantonment Board that direction of the
Division Bench after modification enables them to include encroachers in
the voters list. The finding recorded by the Division Bench is that
encroachers are not entitled for allotment of house numbers to illegal
structures and such structures will be marked as unauthorized. The
Cantonment Board has not been authorized to include the encroachers in the
voters list. We are of the opinion that the clear directions in Writ
Petition No. 7169 of 2008 would disentitle the persons living in illegally
constructed houses from being included in the voters list.
23. Before parting with the case it is our duty to deal with the very
disturbing fact of encroachments on defence land. During the course of
hearing, it was brought to our notice that there were several encroachments
and a large number of illegally constructed houses in the Cantonment area.
We were also informed that there is a Public Interest Litigation pending in
the High Court of Madhya Pradesh and Jabalpur and pursuant to the interim
directions in the said Writ Petitions a substantial number of illegally
constructed houses were demolished. The Cantonments Act, 2006 re-enacted
the existing Act of 1924 after taking into consideration the
recommendations made by the Standing Committee of Parliament on Defence.
One of the recommendations made by the Standing Committee of Parliament is
to tackle encroachments on defence lands situated all over the country. In
paragraph 12 above, we have referred to Section 247 and 248 of the Act
which provide for demolition of illegally erected buildings and penalties
for making illegal construction. Section 34 (1) (e) of the Act also
provides for removal of a member of the Board who aids or abets
encroachment and the illegal constructions on the defence land. We are of
the considered view that avowed legislative policy and the provisions of
the Act relating to encroachments should be strictly implemented. Prompt
action has to be taken by the concerned authorities for removal of the
illegally constructed buildings in the Cantonment area. The Cantonment
Boards should be vigilant and ensure that no further encroachments are made
on defence land.
24. For the aforesaid reasons, the Civil Appeals are dismissed.
.…............................J.
[ANIL R. DAVE]
................................J.
[L. NAGESWARA RAO]
New Delhi,
September 27, 2016.