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TMI Blog2016 (9) TMI 1633X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - Civil Appeal Nos. 9728-9729 of 2016 (Arising out of SLP (C) Nos. 20677-20678 of 2016) and Civil Appeal Nos. 9730-9731 of 2016 (Arising out of SLP (C) Nos. 20687-20688 of 2016) - - - Date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 As the second voters list containing the names of the encroachers was withdrawn by the Board, Writ Petition No. 20038 of 2013 was disposed of and Contempt Petition No. 2379 of 2013 was closed on 17.02.2014.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 provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ualified 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 sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... qualification. 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 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 and Ors. v. Debi Ghosal and Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 qualifyi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ao 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ma 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 elect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 elector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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