JUDGMENT
Palok Basu and Lakshmi Bihari,
JJ.
1. Shri Shashi Nandan, learned counsel for the petitioner argued 3 points :
(1) In the Instant case the impugned order dated 8.1.2002 is without jurisdiction because the Electoral Officer has in a way permitted use of Form 8 even when the objection in an existing entry in the electoral roll has been made by a third person “and not by the petitioner.
(2) Rule 13 (3) of the Registration of Electorals Rules, 1960, framed under the Representation of People Act, 1950 (hereinafter referred as the ‘Rules’ and the ‘Act’ respectively) do not permit the type of decision which has been passed in as much as the petitioner never objected to the entry which was existing in the Electoral Roll.
(3) Since inherent lack of Jurisdiction emanates from the impugned order, no appeal lay and even if it is held by this Court that appeal lies, on the facts and circumstances of the case, said alternative remedy be not imposed as a bar to the petitioner. Petitioner is approaching this Court under Article 226 of the Constitution of India directly for there is every likelihood that notice for election may be published in one or two days with the result that the petitioner will now, in view of the impugned order, stand debarred from contesting the same.
2. Shrl R.K. Saxena, learned standing counsel has opposed the writ petition and has relied upon the provisions which exist under the Act and the Rules and has said that no case for interference with the impugned order is made out and at best the petitioner can be relegated to the appellate authority.
3. No body can challenge the electoral roll and the entry made therein except in accordance with the Act and the Rules, and the authorities asked to oversee the amendments of the electoral rolls which govern the election rights of every citizen in this country, have to act with utmost vigil and uprightness. Therefore, paramount importance should be attached to the existing entries or those which are permitted to be corrected or amended or substituted in place of the existing entries before the election process begins or during the election process if law so permits, as the case may be, and for that matter strict adherence to the procedure is expected.
4. Section 21 of the Act provides for preparation and revision of Electoral Rolls and Section 22 provides for correction of entries in the Electoral Rolls. Likewise inclusion of some names is permissible under the provisions of Section 23.
5. Rule 12 provides the period for lodging the claims and objections.
6. Rule 13 reads as under :
“13. Form for claims and objections,–(1) Every claim shall be-
(a) in Form 6 ;
(b) signed by the person desiring his name to be included in the roll ; and
(c) countersigned by another person whose name is already included in that part of the roll in which the claimant desires his name to be included.
(2) Every objection to the inclusion of a name in the roll shall be-
(a) in Form 7 ;
(b) preferred only by a person whose name is already included in that roll ; and
(c) countersigned by another person whose name is already included in that part of the roll in which the name objected to appears.
(3) Every objection to a particular or particulars in any entry in the roll shall be-
(a) in Form 8 ; and
(b) preferred only by the person to whom that
entry relates,”
7. Thereafter Rules 14. 15 and 16 deal with the manner in which claims will be received, registered and maintained in the office of the Electoral Officer. Rule 17 provides for rejection of certain claims and the objections. Rule 18 permits the said officer to pass orders regarding the claims and objection even without further enquiry though under certain conditions.
8. Rule 19 provides notice of hearing on claims and objections which may be attracted only when Rules 17 and 18 are to be crossed over. The manner of holding enquiry is provided in Rule 20. It further provides that the person who is the claimant or who is the objector or who may be the person objected (emphasis by the Court) and also any other person who may be of assistance to him may be asked to appear and be heard and require any other or all of them to produce such evidence as may be tendered. After having done so, final orders should be passed under Rule 21 when the matter relates to the inclusion of names inadvertently omitted, and under Rule 22 the final publication of the roll has to be ordered.
Rule 22 reads as under :
“Final publication of roll.–(1) The Registration Officer shall thereafter :
(a) prepare a list of amendments to carry out his decisions under Rules 18. 20 and 21 and to correct any clerical or printing errors or other inaccuracies subsequently discovered in the roll ; and
(b) publish the roll, together with the list of amendments, by making a complete copy thereof available for inspection and displaying a notice in Form 16 at his office.
(2) On such publication, the roll together with the list of amendment shall be the electoral roll of the constituency.”
9. Having thus examined the provisions in the Act and the Rules, reference shall have to be made to the Impugned order and we find that none of the arguments advanced by Shri Shashi Nandan can carry the Court to grant the relief prayed which are to the effect that a writ in the nature of certiorari should go quashing the impugned order dated 8.1.2002 (Annexure-1) and a mandamus should go asking the respondents to permit the petitioner to contest the forthcoming election for the Legislative Assembly for the constituency of Moradabad Dehat Vidhan Sabha.
10. The impugned order runs in closely typed three pages in Hindi language. From the said order, it appears that objections were filed by Smt. Phool Begam who is the Pradhan of Gram Panchayat Peepal Sana, Moradabad, alleging that the age of the petitioner as written in the electoral roll is wrong and incorrect. Along with the objection, the said Pradhan had filed certified copy of the family Register, copy of the transfer certificate Issued by the National Junior High School, Peepal Sana, photo copy of the mark-sheet relating to the relevant High School examination. On report called on the objection, it appears that the Lekhpal/Naib Tehsildar recommended the amendment in the date of birth of
the petitioner as was prayed by the Pradhan. This objection/application of Smt. Phool Begam was moved on the application Form 8 (Praroop-8).
11. On completing the formalities, the said objection was registered by the Electoral Officer. It has been noted in the impugned order that in the Identity Card issued in the year 1975, the age of the petitioner was shown as 24 years though in the photostat copies the petitioner’s age as on date should be 21 years. Further contention of the petitioner was that the Instant objection filed by Smt. Phool Begam is the outcome of the family disputes. The further objection raised on behalf of the petitioner as noted in the order was that petitioner had then no idea of fighting election, therefore, could not make any alteration in the Register or record. Several documents were scrutinized by the Electoral Officer relating to the rival claims.
The following three facts are also specifically noted :
(1) Ramesh Singh son of Malkhan Singh was examined who happened to be the clerk in the concerned college who proved the relevant entries against Role No. 2027402 which relates to the petitioner in which the date of birth of the petitioner is shown as 1.7.1980. Certified copy of those documents were also produced by the said witness Ramesh Singh. Copy of the transfer certificate proved has been said by the petitioner to be Incorrect.
(2) One Shri Jitendra Kumar Chaubey, Advocate had filed his vakalatnama before the authority concerned and the Officer has noted that no other document has been filed by the petitioner before him.
(3) The petitioner himself never appeared before the Electoral Officer, no direct objection/ application has been filed by the petitioner before the Electoral Officer, no affidavit or document has been filed by
the petitioner before the said Officer. The objection on behalf of the petitioner has been filed by Mohd. Reazul Haq who is said to be the uncle of the petitioner. As noted above in the objection, the petitioner alleged his age to be 24 years in the year 1995. This aspect of the matter has been specifically noted by the Officer concerned before he has entered into the discussion of merit and demerits of the claims and objections placed before him, hence this specific mention.
12. Coming to the merits of the matter, the discussion indicates that noting of the age 24 years of the petitioner proceeds on the basis of his date of birth being noted as 5.12.1977. The certificates Issued by the college authority which are duly countersigned by the Basic Shiksha Adhikari and the transfer certificate which has been produced indicate two different dates of birth. The finding has been recorded that inspite of notice to the college authority, nobody came to prove the transfer certificates which were produced by the petitioner and, therefore, they remain only plain papers. The advocate appearing for the petitioner before the Officer concerned did not file any certified copy of the Family Register. The Officer has, therefore, noted that in the absence of any proof or any attempt to examine some officials or officers of the college and other department so as to prove the date of birth as noted in the certificate produced by the petitioner, no reliance could be placed on those documents. The officer, therefore, rejected those documents.
13. The Officer has then proceeded to examine the evidence produced by Ramesh Singh aforesaid witness who not only produced the copy of the High School Certificate entry at page 574 of Janta Inter College the original of which was 084118 and related to Role No. 2027402 in which the date of birth of the petitioner is noted as 1.7.1980
and he is said to have obtained 203 marks and is noted as a failed candidate. The copy of the Result Notification has also been examined which has also been filed and admitted on the record.
14. Shri Shashi Nandan shows that this is wrongly referred to as a Gazette Notification which should be referred as extract from the scholar Register, i.e., Cross-List. It does not matter by what name the said document is referred to so long as the description of the contents of the document create no doubt.
15. After discussing the evidence on record, the Officer concerned came to the conclusion that the entry in the cross list for the year 1999 indicating date of birth of the petitioner to be 1.7.1980 is unimpeachable and as per Hon’ble Supreme Court verdict also, such a document conclusively establishes the age of the petitioner and his date of birth being 1.7.1980.
16. The Officer, therefore, in the impugned order has directed correction relating to the entry No. 43 of House No. 118/R to indicate the correct date of birth as 1.7.1980 and his age on 1.1.2002 to be 21 years 5 months.
17. In view of the aforesaid findings of fact, it cannot be said that this Court is empowered to interfere in a petition under Article 226 of the Constitution of India on such question of fact.
18. The first argument of Shri Shashl Nandan, therefore, has now to be examined.
19. Rule 22 quoted above permits two methods for correcting of an error in the electoral rolls :
(1) On an application made to him and/or
(2) On his own motion.
Rules have been noted above which Indicate the circumstances under which enquiry will not be necessary. It has also been noted above when an enquiry shall have to be gone into. It may be pointed out here that there may be various reasons for which a person whose name is entered in the
Electoral Roll consisting some wrong entries may not himself challenge the mistake in the entry. The wrong entry may or may not give to him or extend unto him a right under the Act which a citizen may be getting otherwise. Therefore, to say that using of Form 8 would be confined only to the person whose entry is wrong, will be going against Rule 22 itself. Moreover, objections have got to be raised only in Form 8 if those objections are under Rule 13 (3). Simultaneously, it is to be said that but for the three Form, i.e.. Form 6, Form 7 and Form 8, no other Form is available under the Rules to lodge a claim or to object to any entry in the Electoral Roll and objector who wants to bring some truth relating to entry existing in the Electoral Roll must be permitted to go to that Officer through the Form under Rule 8 alone. First argument of Shri Shashi Nandan, therefore goes.
20. Coming now to the second argument, it is to be said that the Officer concerned had afforded fullest opportunity to the petitioner who did not even appear himself and did file a vakalatnama of a counsel and whatever material was produced by the petitioner in his support has been specifically noted and dealt with. There is no scope for Mr. Shashi Nandan to argue that the Officer concerned has not addressed himself to the issues involved.
21. Similarly, the third argument of Sri Shashi Nandan that appeal may not be asked to be filed by the petitioner also loses validity as the questions of fact can only be decided there which is a statutory remedy.
22. The provisions of the Act and the Rules which have been quoted above are stated by learned counsel for the petitioner to be the correct provisions existing in the Act and the Rules as on date. Court has, therefore, proceeded to rely upon and place its judgment on the aforesaid provisions. It may be pointed out that the detailed discussion had to be entered into for the decision in this petition and the observations will not be used by either parties in any proceedings to follow.
23. The petitioner’s right to file an appeal is upheld. If he files an appeal within the prescribed period, it shall be decided by the appellate authority very expeditiously.
24. With the aforesaid observations, the writ petition is dismissed.
25. The copy of this order shall be handed over to the learned counsel for the parties on payment of usual charges within 3 days.