2016 (9) TMI 1633 - SC - Indian Laws

Right to vote of persons living in illegally constructed buildings in a Cantonment area - Scope of the word 'resident' - HELD THAT - 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. 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 - 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. An 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. Appeal dismissed.

Summary

Issues Involved:
1. Right to vote of persons living in illegally constructed buildings in a Cantonment area.
2. Preparation of electoral rolls in accordance with Rule 10(3) of the Cantonment Electoral Rules, 2007.
3. Maintainability of a Writ Petition challenging the voters list.
4. Interpretation of the term "resident" under the Cantonment Act, 2006.
5. Impact of interim orders on the validity of elections conducted.

Issue-wise Detailed Analysis:

1. Right to Vote of Persons Living in Illegally Constructed Buildings in a Cantonment Area:
The primary issue was whether individuals residing in unauthorized structures in a Cantonment area are entitled to vote. The Court concluded that only individuals residing in legally constructed houses are entitled to be registered as voters. The term "resident" in the Cantonment Act, 2006, implies a person who maintains a house constructed with prior sanction from the Board. Encroachers or those living in unauthorized constructions do not qualify as residents for electoral purposes.

2. Preparation of Electoral Rolls in Accordance with Rule 10(3) of the Cantonment Electoral Rules, 2007:
The Court emphasized that electoral rolls must be prepared strictly in accordance with Rule 10(3), which mandates that names of electors be arranged according to house numbers. This rule excludes individuals living in houses without assigned numbers, typically those in unauthorized constructions, from being included in the electoral roll. The Court rejected the argument that Rule 10(3) conflicts with Section 28 of the Act, affirming that Rule 10(3) is in conformity with the statutory provisions.

3. Maintainability of a Writ Petition Challenging the Voters List:
The Court addressed the maintainability of the Writ Petition challenging the voters list, asserting that the proviso to Rule 55 explicitly states that no election petition is maintainable for inclusion or exclusion in the electoral rolls. Hence, the Writ Petition filed by the respondent was deemed maintainable.

4. Interpretation of the Term "Resident" under the Cantonment Act, 2006:
The Court undertook a detailed interpretation of the term "resident" as defined in Section 2(zt) of the Cantonment Act, 2006, which requires maintaining a house available for occupation by oneself or one's family. This definition implies that the house must be legally constructed with prior sanction from the Board. The Court contrasted this with the broader term "inhabitant," which includes those residing in unauthorized structures but does not confer electoral rights.

5. Impact of Interim Orders on the Validity of Elections Conducted:
The Court upheld the High Court's decision that elections conducted pursuant to an interim order, which were subject to the outcome of the Writ Appeal, do not confer any rights on the elected candidates once the election is set aside. The High Court's directions for the preparation of a fresh voters list in accordance with Rule 10(3) were affirmed.

Conclusion:
The Supreme Court dismissed the appeals, affirming the High Court's judgment that encroachers and individuals living in unauthorized constructions are not entitled to vote in Cantonment Board elections. The preparation of electoral rolls must strictly adhere to Rule 10(3) of the Cantonment Electoral Rules, 2007, and the term "resident" under the Cantonment Act, 2006, should be narrowly construed to exclude those in illegal structures. The Court also emphasized the need for strict implementation of legislative policies and provisions relating to the removal of encroachments on defense land.