IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 28897 of 2009(S)
1. RAGESH P.K.,S/O.LATE P.GOVINDAN
... Petitioner
Vs
1. THE ELECTION COMMISSION OF INDIA,
... Respondent
2. THE CHIEF ELECTORAL OFFICER, KERALA,
3. THE DEPUTY COLLECTOR-GENERAL, KANNUR,
4. THE TAHSILDAR, KANNUR,
5. THE DISTRICT COLLECTOR, KANNUR.
For Petitioner :SRI.KALEESWARAM RAJ
For Respondent :SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :13/10/2009
O R D E R
P.N.RAVINDRAN, J.
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W.P.(C)No.28897 of 2009-S
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Dated 13th October, 2009
JUDGMENT
Heard Sri.Kaleeswaram Raj, the learned counsel appearing
for the petitioner and Sri.Murali Purushothaman, the learned
standing counsel appearing for the respondents.
2. The petitioner is the President of Pallikkunnu Grama
Panchayat and a voter of the Kannur Assembly Constituency. He
is also a member of the Kannur District Congress Committee of
the Indian National Congress (I). The grievance voiced by the
petitioner in this writ petition is that a large number of persons
named in Ext.P5 have been wrongly included in the electoral roll
for Kannur Legislative Assembly Constituency prepared for the
ensuing elections and that likewise, a large number of eligible
voters named in Ext.P11 have not been included therein.
3. The petitioner submits that he had submitted Ext.P5, a
consolidated list of such persons wrongly included in the electoral
roll, to the fourth respondent, the Electoral Registration Officer
for the Bye-election to the Kannur Legislative Assembly along
with Ext.P6 representation dated 9.10.2009 requesting that their
WP(C).No.28897 of 2009-S 2
names may be excluded and a final voters list published in time,
giving an opportunity to file an appeal as per the provisions of the
Representation of the People Act, 1950. Similarly, it is stated that he
had also furnished Ext.P11, a list of persons who are entitled to be
included in the electoral roll for Kannur Legislative Assembly
Constituency. The petitioner contends that the persons named in
Ext.P5 list are not entitled to be included in the electoral roll for
Kannur Legislative Assembly Constituency, while the persons named
in Ext.P11 are entitled to be included in the electoral roll. The
learned counsel for the petitioner submits that individual requests for
inclusion and exclusion of names have been filed before the fourth
respondent and that what is produced in this writ petition is only a
consolidated list of persons whose names are liable to be deleted
from the voters list and also a consolidated list of voters who are
entitled to be included therein. It is alleged that notwithstanding the
objections raised to the inclusion of certain names in the voters list
and the exclusion of certain names therefrom, till date the fourth
respondent has not taken any action in the matter. In this writ
petition, the petitioner seeks the following reliefs:
“i) To issue a writ of mandamus directing the 4th
respondent to take appropriate action on Exhibits P5, P6 and
P12 and to pass orders thereon before finalization of electoralWP(C).No.28897 of 2009-S 3
rolls for Kannur Assembly Constituency bye election
scheduled to be held to 7.11.2009.
ii) To issue a writ of mandamus directing the 4th
respondent to take appropriate action on Exhibits P5, P6 and
P12 as per Sections 22 and 23 of the Representations of
People Act, 1950 before finalization of electoral rolls for
Kannur Assembly Constituency bye election scheduled to be
held to 7.11.2009.”
4. The relevant averments relating to the petitioner’s request
for exclusion of certain names from the voters list are those
contained in para 11 of the writ petition. It reads as follows:
“11. …..A copy of consolidated list of objections
raised with respect to Exhibit P1 and P2 are produced
herewith and marked as Exhibit P5. Request for deletion of
ineligble entries as voters and addition of eligible voters
were sought by way of Exhibit P5. The petitioner also
submitted a representation enclosing Exhibit P5 before the
4th respondent indicating the ineligible voters. A copy of
the said representation is produced herewith and marked
as Exhibit P6.”
5. As regards the request for inclusion of eligible voters in
and exclusion of ineligible voters from the voters list, the petitioner
has in paras 16 and 18 of the writ petition stated as follows:
“16. It is submitted that when applications are
submitted raising concern against inclusion of ineligible
voters and exclusion of eligible voters, it is the duty of the 4th
respondent to conduct enquiry in compliance of provisions
provided under Representations of Peoples Act. It is
submitted that objections which are subject matter of
Exhibits P5 and P6 were not enquired into at all. No
publication was ever made by the 4th respondent asWP(C).No.28897 of 2009-S 4
contemplated in From No.IV and hence there was no
consideration of objection and finalisation of the matter.
Since there is no enquiry prescribed under the
Representations of Peoples Act, 1950 or issuance of orders
prescribed under the Act, the petitioner or other voters are
precluded from filing appeal.
18. …..In this context, it is to be noted that the
worksheet given by the 4th respondent will show that more
than 5000 voters are excluded from Kannur Legislative
Assembly Constituency. A copy of the working sheet is
produced herewith and marked as Exhibit P11.”
6. Sri.Kaleeswaram Raj, the learned counsel appearing for
the petitioner contends that Ext.P5 is only a consolidated list of the
names of persons who are liable to be removed from the electoral
roll and that Ext.P11 is a consolidated list of persons who are entitled
to be included in the voters list. He submits that the fourth
respondent is bound to conduct an enquiry under Sections 22 and 23
of the Representation of the Peoples Act, 1950 and take an
appropriate decision in the matter.
7. Sri.Murali Purushothaman, the learned standing counsel
appearing for the respondents submits that the inclusion of names in
the electoral roll is the right of the individual and not the right of any
other person or political party and that the petitioner cannot seek the
inclusion of the persons named in Ext.P11 in the electoral roll. He
contends relying on Section 23 of the Representation of the People
WP(C).No.28897 of 2009-S 5
Act, 1950, Rule 13(2) of the Registration of Electors Rules, 1960 and
the decision of the Apex Court in Lakshmi Charan Sen V.
A.K.M.Hassan Uzaman (AIR 1985 SC 1233) that the petitioner
cannot seek the inclusion of the name of any person in the electoral
roll. He also contends relying on Section 22 of the Representation of
People Act, 1950, Rule 13(1) of the Registration of Electors Rules
1960 and the decision of the Apex Court Lakshmi Charan Sen V.
A.K.M.Hassan Uzaman(supra) that in the case of inclusion of the
name of any ineligble person in the Electoral roll, individual
objections have to be filed in the prescribed form. The learned
standing counsel for the Election Commission submits that an
application for inclusion of name in the Electoral roll will have to be
made in From 6 by the voter seeking such inclusion and that an
application seeking the deletion of a name from the Electoral roll will
also have to be given in the case of each person who is wrongly
included in the Electoral roll Form No.7, by a person whose name is
already included in that roll. He submits that petitioner has not
pleaded or proved that such applications in From Nos.6 and 7 have
been submitted before the fourth respondent and therefore the
reliefs sought in this writ petition cannot be granted.
8. I have considered the submissions made at the Bar by the
WP(C).No.28897 of 2009-S 6
learned counsel appearing on either side. Section 22 of the
Representation of the People Act, 1950 states that if the Electoral
Registration Officer for a constituency, on application made to him or
on his own motion, is satisfied after such inquiry as he thinks fit, that
any entry in the electoral roll of the constituency, is erroneous or
defective in any particular or should be transposed to another place
in the roll on the ground that the person concerned has changed his
place of ordinary residence within the constituency or 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, the Electoral Registration
Officer shall, subject to such general or special direction, if any, as
may be given by the Election Commission in this behalf, amend,
transpose or delete the entry. The proviso to Section 22 stipulates
that before taking any action on any ground under clause a, b and c
of Section 22, 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. Rule 13(2) of the
Registration of Electors Rules, 1960 states that every objection to
the inclusion of a name in the roll shall be in Form 7 and shall be
preferred only by a person whose name is already included in that
WP(C).No.28897 of 2009-S 7
roll. Form No.7 prescribed under Rule 13(2) of the Registration of
Electors Rule, 1960 obliges the applicant to furnish various details.
He is also bound to declare that the facts and particulars mentioned
therein are true to the best of his knowledge and belief. Similarly
under Rule 13(1) every claim for inclusion of the name of a voter in
the electoral roll has to be in From 6 and signed by the person
desirous of having his name included in the electoral roll. Form 6
also requires the applicant to furnish various details in support of the
claim for inclusion of his name in the electoral roll.
9. It is evident from Form Nos.6 and 7 that requests for
inclusion of names in the voters list and for exclusion of names
therefrom have to be given individually. In other words, a voter will
have to make separate applications seeking deletion of the names of
ineligible persons from the electoral roll. Likewise, every voter
seeking inclusion of his name in the electoral roll will have to submit
individual applications. In the instant case, the relief prayed for by
the petitioner is to issue a writ in the nature of mandamus directing
the fourth respondent to take appropriate action on Exts.P5 and P6
as per Section 22 and 23 of the Representation of the People Act.
He has also prayed for a similar relief in relation to Ext.P11. Apart
from merely stating that Ext.P5 is a copy of the consolidated list of
WP(C).No.28897 of 2009-S 8
objections raised in respect of voters who are ineligible to be
included in the voters list, there is no positive averment in the writ
petition that any particular voter has or voters have filed applications
in Form No.7 before the fourth respondent seeking deletion of the
names of ineligible voters. In other words there is total lack of
pleadings in the writ petition as to whether separate applications in
From No.7 objecting to the inclusion of the names of the persons
named in Ext.P5 have been submitted either by the petitioner or by
any other voter or voters of Kannur Assembly Constituency.
Therefore, in the light of Rule 13(2) of Registration of Electoral
Rules, I am of the opinion that the petitioner cannot seek a direction
to the fourth respondent to take appropriate action on Ext.P6 in
accordance with Sections 22 and 23 of the Representation of Peoples
Act. The petitioner has not able to establish with reference to any
cogent material that individual applications seeking the exclusion of
the persons named in Ext.P5 list from the voters list have been filed
before the fourth respondent. In the absence any pleading or proof
that such applications have been filed and are pending before the
fourth respondent, I hold that the petitioner cannot seek a writ in the
nature of mandamus commanding the fourth respondent to take
appropriate action as prayed for in Ext.P6.
WP(C).No.28897 of 2009-S 9
10. As regards the request for inclusion of names in the voters
list/electoral roll, the petitioner has not averred or proved that the
persons named in Ext.P11 have submitted individual applications in
From No.6 seeking inclusion of their names in electoral roll. As held
by the Apex Court in Lakshmi Charan Sen V. A.K.M.Hassan
Uzaman (supra) the right to be included in the electoral roll is a right
conferred upon an individual and not upon any political party. It is
for the individuals named in Ext.P11 if their names have not been
included in the electoral roll to apply for inclusion of their names in
the electoral roll. No other person can compel them to seek inclusion
of their names in the electoral roll. As regards the persons named in
Ext.P11 also there is no averment or proof to the effect that the
persons named therein have submitted individual applications in the
prescribed form seeking inclusion of their names in the electoral roll.
Such being the situation, the petitioner cannot seek a writ in the
nature of mandamus commanding the fourth respondent to take
appropriate action to include the persons named in Ext.P11 list in the
electoral roll.
11. Though the learned counsel appearing for the petitioner
contend that as regards exclusion of names, the Electoral
Registration Officer can exercise the power suo motu, I am of the
WP(C).No.28897 of 2009-S 10
opinion that such power cannot be exercised based on vague
allegations made by the petitioner in Ext.P6. I am therefore
constrained to hold that the fourth respondent cannot be called upon
to exercise the power conferred on him under Section 22 of the
Representation of People Act suo motu and to delete the names of
the persons named in Ext.P5 from the electoral roll.
I accordingly hold that there is no merit in this writ petition.
The writ petition fails and is dismissed with the observation that if
individual applications in Form Nos.6 and 7 have been received by
the fourth respondent on or before 12.11.2009, the fourth
respondent shall deal with the applications and pass orders thereon
in accordance with law.
Sd/-
P.N.RAVINDRAN
Judge
//True Copy//
PA to Judge
ab