KUMAR SHASHANK SHEKHER vs ELECTION COMMISSION OF INDIA & ANR.

$~133
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 22.05.2024
+ W.P.(C) 7341/2024
KUMAR SHASHANK SHEKHER ….. Petitioner
Through: In-person.
versus

ELECTION COMMISSION OF INDIA & ANR…… Respondents
Through: Mr. Ankit Agarwal, SC along with Mr. Ashish Shukla, Adv. for R-1/ECI.
Mr. Amit Sharma, Mr. Dipesh Sinha and Ms. Aparna Singh, Advs. for R-2 (through v/c)
Mr. Rajeev Sharma, Adv. for Chief Electoral Office (through v/c)

CORAM:
HON’BLE MR. JUSTICE SACHIN DATTA

SACHIN DATTA, J. (Oral)

1. The present petition under Articles 226 and 227 of the Constitution of India seeks the following reliefs:
“a) Issue a Writ of Mandamus, or any other appropriate writ, order or direction to the Respondents to take effective remedial actions in order to reverse the effects of the illegal, arbitrary and unlawful actions of the Respondent in deleting the name, details of the Petitioner from the electoral records; and direct the Respondents to immediately re-enter the details of the Petitioner in the electoral records in order to enable him and permit him to cast his vote in the 6th Phase of General Elections, 2024 scheduled to be held in Delhi on 25.05.2024; and

b) Issue a writ of Mandamus to the Respondents directing them to conduct a proper and just enquiry/investigation into the issue and take appropriate actions against the erring officials.”

2. It is submitted that the petitioner is a resident of Mehrauli Constituency. On 09.06.2023, the petitioner had applied for update of his electoral record consequent upon change in his residential address within the same constituency. The said application of the petitioner was scrutinized by the respondent/ECI and accordingly, the respondent/ECI issued a fresh Voter ID Card to the petitioner. It is submitted that the petitioner has never applied for seeking deletion of petitioner’s name/detail from the electoral record. However, on 16.05.2024, while checking for the polling centre relevant for the petitioner to cast his vote in sixth phase of General Elections, 2024, scheduled to be conducted in Delhi on 25.05.2024, no result could be obtained online. The petitioner is stated to have made representations to the respondents highlighting the said issue, however, to no avail. In the said backdrop, the present petition came to be filed.
3. Learned counsel for the petitioner submits that the non-inclusion of the petitioner’s name in the electoral roll of Mehrauli Constituency is arbitrary, illegal and is contrary to the provisions of Representation of the People Act, 1950 and Registration of Electoral Rules, 1960. It is further submitted that said action of the respondents is contrary to the directions contained in the order dated 04.08.2023, passed by the Supreme Court in W.P.(C) 1253/2021 titled as M.G. Devasahayam & Ors. v. Union of India & Anr. He has further placed reliance on decision of the Supreme Court in Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman, (1985) 4 SCC 689. It is submitted that no prior notice was given to the petitioner before deletion of his name from the electoral roll.
4. Learned counsel for the respondent no.1/ECI, who appears on advance notice, submits that the present petition is barred under Section 23(3) of Representation of the People Act, 1950. He submits that the last date for filing nominations in the sixth phase of General Elections, 2024 has already ended on 06.05.2024. As such, no direction for inclusion of petitioner’s name in the electoral roll can be given. In this regard he has also placed reliance on the following judgments; Baidyanath Panjiar v. Sitaram Mahto, (1969) 2 SCC 447; Kabul Singh v. Kundan Singh, (1969) 2 SCC 452; Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman, (1985) 4 SCC 689; Narender Madivalapa Kheni vs. Manikrao Patil, (1977) 4 SCC 16 and P.T. Rajan v. T.P.M. Sahir, (2003) 8 SCC 498. He further submits that pursuant to a Special Summary Revision of electoral roll, draft electoral roll was published in October 2023; however, no claim/objection was received from the petitioner before publication of the final electoral roll. It is submitted that even after publication of the final electoral roll but before the last date of filing nominations in Mehrauli Constituency, no claim/objection was received from the petitioner.
5. There is merit in the aforesaid submissions of learned counsel for the respondent no.1/ECI, as regards non-maintainability of the present petition at this stage.
6. Section 23(3) of Representation of the People Act, 1950 reads as under:
“23. Inclusion of names in electoral rolls:
(1)….
(2)….
(3) No amendment, transposition or deletion of any entry shall be made under section 22 and no direction for the inclusion of a name in the electoral roll of a constituency shall be given under this section, after the last date for making nominations for an election in that constituency or in the parliamentary constituency within which that constituency is comprised and before the completion of that election.”

7. The aforesaid provision clearly provides that no direction for the inclusion of a name in the electoral roll of a constituency shall be given, “after the last date for making nominations for an election in that constituency”. The mandatory nature of the proscription under Section 23(3) has been highlighted by the Supreme Court in numerous judgments. It has also been held that the elections have to be held on the basis of the electoral roll which is in force on the last date of making nomination; notwithstanding the fact that the roll contains errors that remain to be corrected.
8. In Baidyanath Panjiar (supra) it has been held as under:
“…The legislative mandate like the one embodied in Section 23(3) must be considered as mandatory not merely because of the language employed in that sub-section but also in view of the purpose behind the provision in question. In our opinion clause 23(a) takes away the power of the electoral registration officer or the chief electoral officer to correct the entries in the electoral rolls or to include new names in the electoral rolls of a constituency after the last date for making the nominations for election in that constituency and before the completion of that election. Section 23(3) does not deal with any mode or procedure in the matter of registering the voters. It interdicts the concerned officers from interfering with the electoral rolls under the prescribed circumstances. It puts a stop to the power conferred on them. Therefore it is not a question of irregular exercise of power but a lack of power.”

9. In Kabul Singh (supra) it has been held as under:
“…The mandate of that provision is plain and unambiguous. It prohibits inclusion of any name in the electoral roll after the prescribed date whether the application for inclusion was made before or after that date.”

10. In Lakshmi Charan Sen (supra) it has been held as under:
“19. Section 23(3) of the Act of 1950 also points in the same direction. Under that provision, no amendment, transposition or deletion of an entry can be made under Section 22 and no direction for the inclusion of a name in the electoral roll of a constituency can be given, after the last date for making nomination for an election in the particular constituency. The election has to be held on the basis of the electoral roll which is in force on the last date for making nominations. If that were not so, the easiest expedient which could be resorted to for the purpose of postponing an election to the Legislature would be to file complaints and objections, omnibus or otherwise, which would take days and months to decide. It is not suggested that claims and objections filed in the prescribed form should not be decided promptly and in accordance with law. But, the important point which must be borne in mind is that whether or not a revision of an electoral roll is undertaken and, if undertaken, whether or not it is completed, the electoral roll for the time being in force must hold the field. Elections cannot be postponed for the reason that certain claims and objections have still remained to be disposed of. Then, claimants and objectors could even evade the acceptance of notices and thereby postpone indefinitely the decision thereon. The holding of elections to the Legislatures, which is a constitutional mandate, cannot be made to depend upon the volition of interested parties.
20. According to sub-rule (3) of Rule 23 of the Registration of Electors Rules, 1960, the “presentation of an appeal under this rule shall not have the effect of staying or postponing any action to be taken by the Registration Officer under Rule 22”. Rule 22 imposes upon the Registration Officer the obligation to publish the electoral roll which, together with the list of amendments, becomes the electoral roll of the constituency. Thus, the fact that an appeal is pending under Rule 23(1) against the decision of a Registration Officer under Rule 20, 21 or 21-A does not constitute an impediment to the publication of the roll and to the roll, upon such publication, coming into force. Rule 20 provides for inquiry into claims and objections; Rule 21 provides for inclusion of names which are left out of the roll owing to inadvertence or error; while, Rule 21-A provides for the deletion of names of dead persons and of persons who cease to be, or are not, ordinary residents of the particular constituency. Notwithstanding the fact that the roll contains these errors and they have remained to be corrected, or that the appeals in respect thereof are still pending, the Registration Officer is under an obligation to publish the roll by virtue of Rule 22.
21. As a result of this discussion, it must follow that the fact that certain claims and objections are not finally disposed of, even assuming that they are filed in accordance with law, cannot arrest the process of election to the Legislature. The election has to be held on the basis of the electoral roll which is in force on the last date for making nominations.

11. In Narendra Madivalapa Kheni (supra) it has been held as under:

“….The cumulative effect of these various strands of reasoning and the rigour of the language of Section 23(3) of the 1950 Act leaves no doubt in our minds that inclusion of the names in the electoral roll of a constituency after the last date for making nominations for an election in that constituency, must be visited with fatality. Such belated arrivals are excluded by the talons of the law, and must be ignored in the poll.”

12. In view of the aforesaid, it is impermissible for this court to pass a direction to the respondents, in face of the statutory proscription, to include the petitioner’s name in the electoral roll of Mehrauli Constituency after the last date for filling nominations for General Elections, 2024 in Mehrauli Constituency has already expired on 06.05.2024.
13. However, the respondents are directed to consider the present petition as a representation and take a decision thereon at the appropriate stage.
14. The present petition is disposed of in above terms.

SACHIN DATTA, J
MAY 22, 2024/hg

W.P.(C) 7341/2024 page 1 of 6