The Aurangabad Bench of the Bombay High Court in Smita Ravindra Wagh v. State of Maharashtra dismissed a writ petition seeking urgent inclusion in voters list for the Dhule Zilla Parishad election dispute after the statutory deadline for raising objections had elapsed. The Division Bench of Justice A.H. Joshi and Justice Ravindra V. Ghuge held that once an election schedule has been officially notified and candidate nomination dates have commenced, high courts cannot exercise extraordinary writ jurisdiction under Article 226 to alter electoral rolls. The ruling affirmed the doctrine of electoral roll finality and the constitutional mandate governing the Article 243-O bar on interference in local panchayat elections.
Factual Matrix and the Impugned Election Schedule
The petitioner, claiming residence in Sindkheda in Dhule District, applied on 31 August 2013 for the inclusion of her name in the electoral roll for the upcoming elections of the Zilla Parishad and Panchayat Samiti. Under the election schedule notified by the State Election Commission for the preparation of voters lists, claims and objections regarding the draft electoral roll were required to be submitted on or before 28 October 2013.
The petitioner was admitted to a hospital for maternity on 20 October 2013, delivered a child on 21 October, and was discharged on 23 October 2013. Upon discovering that her name was omitted from the finalized voters list, she submitted an objection letter on 30 October 2013, which was two days past the prescribed cut-off date. Because 16 November 2013 was the final date for submitting candidate nomination forms, she approached the High Court seeking a writ of mandamus directing the election authorities to accept her nomination and enter her name in the electoral roll.
Statutory Framework Under Section 13 and Representation of the People Act 1950
The dispute centered on Section 13 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961, which mandates that the electoral roll in existence for Legislative Assembly elections shall serve as the voters list for Zilla Parishad and Panchayat Samiti elections. The petitioner argued that the statutory machinery under the Representation of the People Act 1950 and the Registration of Electors Rules, 1960 should be bodily incorporated into Section 13 so that Electoral Registration Officers retain an ongoing obligation to correct omissions for local body polls.
The respondents opposed the petition, demonstrating that the Maharashtra Legislature consciously omitted to establish a separate mechanism for revising electoral rolls specifically for Zilla Parishad elections. Under Section 23(3) of the Representation of the People Act, 1950, no inclusion or amendment of any entry in an electoral roll can take place after the last date for making nominations. Just as regulatory compliance in statutory property and administrative law demands strict adherence to statutory deadlines, election rules cannot be altered on equitable grounds once an election is set in motion.
Judicial Analysis and Precedents on Electoral Stability
The High Court analyzed binding precedents from the Supreme Court and prior Division Bench rulings of the Bombay High Court, including decisions from the Goa and Aurangabad benches. In reviewing administrative and constitutional compliance akin to principles in Bombay High Court jurisprudence, the bench observed that allowing individual modifications after the notified cut-off date would derail the entire election schedule.
Justice Ravindra V. Ghuge highlighted the Supreme Court Constitution Bench ruling in Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman, which established that the pendency of individual claims or objections cannot arrest the electoral process. Furthermore, the court noted that the petitioner election identity card indicated an address at Hadapsar in Pune rather than Sindkheda. Consequently, this landmark Bombay High Court judgment discharged the rule and dismissed the writ petition, confirming that the extraordinary jurisdiction under Article 226 cannot be invoked to bypass statutory election timelines.
Full Text of the Judgment: Writ Petition No. 9099 of 2013
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
16 November 2013
Writ Petition No. 9099 of 2013
Smita Ravindra Wagh v. State of Maharashtra and others
The Judgment was delivered by: Ravindra V. Ghuge, J.
1. Rule. By consent, Rule is made returnable forthwith and the petition is heard finally.
2. The petition pertains to the petitioner's claim for inclusion of her name in the voters list for the purpose of Elections of Zilla Parishad and Panchayat Samiti, District Dhule.
3. Present writ petition and few more petitions espousing similar cause were heard on 13.11.2013 till 6.00 p.m. However, thereafter, the judgment was reserved.
4. Today, We have taken up this writ petition to deliver our judgment, first in sequence and taking the case on supplementary board at 2.30 p.m. since the last date fixed for nomination of candidates for elections of Dhule Zilla Parishad is 16.11.2013 and 15.11.2013 was declared as holiday and the declaration reached us only after court rose.
5. The petitioner claims that:
(a) She is a resident of Sindkheda.
(b) She has applied for inclusion of her name in the voters list on 31st August, 2013.
(c) As per the programme regulating elections declared by the State Election Commission for the purpose of preparation of voters list, the voters had to raise objection to voters list till 28.10.2013.
(d) The petitioner was admitted in Hospital for her maternity on 20th October, 2013. She had delivered a baby on 21st October, 2013. She remained in Hospital till 23rd October, 2013.
(e) She found that though she had applied, her name was not included in the voters list. Therefore, she submitted a letter of objection on 30.10.2013.
(f) Her application was delayed by two days and has not been considered.
(g) As per the election programme, the last date fixed for nominations is 16th November, 2013.
(h) Since the petitioner's name is not included in the voters list, she is unable to avail the opportunity to contest election.
(i) Hence, the petitioner is before this court and prays for a direction to respondent No.1 to include her name in the voters list.
6. The petitioner's submissions made before us are summarized as follows:
(a) Voters list for the purposes of elections to Zilla Parishad and Panchayat Samitis is a matter governed by the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961.
(b) Section 13(1) thereof, provides that the voters list of Assembly Elections, as in existence and in vogue, shall be the voters list for the elections of Zilla Parishad and Panchayat Samitis.
(c) Reference to words, "Representation of People Act, 1950" in Section 13(1) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961, has to be understood as bodily incorporated and applicable mutatis mutandis to elections of Zilla Parishad and Panchayat Samitis.
(d) As the petitioner's request for inclusion was declined erroneously, and petitioner's objection is not decided, and time for raising objections was short, this court should direct the respondent No.1 to decide petitioner's objection and direct inclusion of petitioner's name in voters list.
(e) Though programme for election has begun, a direction for inclusion can be given, and bar under Article 243-O of the Constitution of India does not operate in such situation.
7. The writ petition is opposed on the following grounds:
(a) The voters list to be used for elections of Panchayat Samitis is the voters list as in vogue for Assembly elections.
(b) The scheme and model as provided under the Representation of People Act, 1950 and Rules of 1960 does not apply to elections of Zilla Parishad and Panchayat Samitis.
(c) The updation of voters list as is being done as an ongoing procedure by Electoral Registration Officers is exclusively in relation to Assembly and Parliamentary elections.
(d) There is no statutory power, authority, duty or obligation on any authority to effect additions, deletions, or modifications in the voters list for the purposes of Zilla Parishad or Panchayat Samitis elections.
(e) The petitioner has failed to make any application in prescribed proforma i.e. Form No.6 under Registration of Electors Rules, 1960. There is no proof of receipt of Form 6 by the Electoral Registration Officer.
(f) The last date for raising objections was 28.10.2013. The objection was filed on 30.10.2013, which was two days late, and therefore was rightly not considered.
(g) Address of petitioner on her Election Identity Card is Hadapsar, Pune, and she does not appear to be an ordinary resident of Sindkheda.
(h) The process of election having commenced, this Court should not interfere in exercise of writ jurisdiction under Article 226.
8. In view of the rival submissions, the following questions arise for our consideration:
(i) Whether Section 13 of the Maharashtra Zilla Parishads and Panchayat Samitis Act bodily incorporates the provisions of Sections 21 to 27 of the Representation of the People Act, 1950 and the Rules of 1960?
(ii) Whether the petitioner is entitled to a writ of mandamus directing the respondents to include her name in the voters list after the expiry of the time schedule fixed for raising objections, when the election programme has already commenced?
9. A Division Bench of this Court at Goa had an occasion to consider a similar situation in Writ Petition No. 270 of 2012 (decided on 01.03.2012) in the case of Savio v. Returning Officer.
10. The relevant facts involved in the said case were as under:
(a) There were four writ petitions in relation to the election of Panaji Municipal Council. The State Election Commission had published a calendar of events of the election programme in which the last date for filing nominations for elections was fixed as February 3, 1996.
(b) The date of taking the poll was fixed as February 25, 1996. The Chief Electoral Officer had allowed the petitioners appeal vide order dated January 25, 1996 and had directed the inclusion of their names in the list of supplement of 1996 for Panaji Assembly Constituency.
(c) Consequent thereupon, the petitioners approached the Returning Officer i.e. Mamlatdar of Tiswadi for inclusion of their names in the voters list in the relevant wards.
(d) The Returning Officer stated that it was not possible to include the petitioners' names in the voters list.
(e) Since the petitioners wanted to contest the Panaji Municipal Council elections, to be held on February 25, 1996, they sought an order from the Court to permit them to contest and vote in the said elections.
(f) After considering the law on the said issue and after considering the rival contentions of the parties, who had placed reliance upon several judgments of the Honourable Apex Court and various High Courts, the Division Bench of this Court dismissed the said writ petitions.
11. In the case of Savio (supra), this Court considered the view of the Honourable Apex Court in the case of Lakshmi Charan Sen and others v. A.K.M. Hassan Uzzaman and others: (1985) 4 SCC 689. The conclusion of the Honourable Apex Court in the said judgment is found in paragraph No.20, which is as under:
"20. 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."
12. Thus, while considering the objections, which are filed in accordance with law, the Honourable Apex Court concluded that the failure to finally dispose of claims and objections cannot arrest the process of election to Legislature and that the election has to be held on the basis of the electoral roll which is in force on the last date for making nominations.
13. This Court had yet another occasion to deal with the issue based on similar set of facts in the case of Shri Ramdas Nana Andhale v. The Electoral Registration Officer and others in Writ Petition No. 8720 of 2013. The Aurangabad Bench of the Bombay High Court vide its order dated 23.10.2013 to which one of us (Ravindra V. Ghuge, J.) is a party considered a similar challenge in respect of voters list for election of Ahmednagar and Dhule Municipal Corporations. In paragraph No.7 of the said order, the Division Bench concluded as under:
"7. We find that very same challenge has been gone into by the Division Bench of this Court at Goa. In fact, in said matter, there was challenge to constitutionality of Section 11 of the Goa Municipalities Act on the ground that it does not permit correction in voters list for the purposes of Municipal elections. That challenge has been turned down. Hence, impugned order dated 17.10.2013 does not call for any interference."
14. It is seen that the scheme of the Maharashtra Zilla Parishads and Panchayat Samitis Act is contained in Section 13 only. It contains a mandate that voters list of Assembly is to be used.
15. Any scheme and mechanism for preparation of a separate voters list for Zilla Parishad election is not provided. Even the machinery acting under Representation of People Act, 1950 and Registration of Electors Rules, 1960 have not been fastened with any obligation under Representation of People Act 1950 and Registration of Electors Rules, 1960, independently or when read with Maharashtra Zilla Parishads and Panchayat Samitis Act to revise the list and do additions or amendments in the list of voters specially for the purpose of Zilla Parishad elections.
16. The availability of petitioner's right is dependent upon existence of a statutory provision in favor of such a claim.
17. These contentions of petitioner need to have a foundation in the legislative enactment. For such foundation there has to be some direct or indirect mandate in the scheme of legislation i.e. Maharashtra Zilla Parishads and Panchayat Samitis Act. Any such mandate is totally absent.
18. The list of voters in vogue in relation to Assembly elections is to be the basis for Panchayat Samiti elections, and the list whatever and as it is, will have to be acted upon. For any individual, the claim for being included or to raise an objection as regards inclusion or non-inclusion will have to be in relation to Assembly elections only. The fact that the provisions of Representation of People Act and Rules of 1960 have not been made applicable expressly, and all that is provided by Section 13 is only use of list of voters in existence for Assembly Elections as a voters list, shall not imply that the provisions of the Representation of People Act and Rules of 1960 stand bodily incorporated.
19. The scheme of Section 13 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, as it stands, will have to be read as a conscious legislative act of the State Legislature. If it is to be held that Sections 21 to 27 of the Representation of People Act are bodily incorporated and read in Section 13 of the Zilla Parishads and Panchayat Samitis Act, such a scheme has to expressly exist. Existence has to be seen obvious and distinct from a desire, expectation and a demand. Petitioner could not point out any direct or indirect mandate of law that such bodily incorporation is the legislative mandate. No such mandate is apparent, even when Section 13 is read and seen from any angle.
20. Considering the judicial dictum as noted in the two cases above named, we see no justification to uphold the plea and call it an exercise of judicial legislation.
21. The conscious omission of not providing a separate scheme and mechanism appears to have been done by the State legislature while drafting and even while amending Section 13 of the Zilla Parishads and Panchayat Samitis Act. This conscious omission will have to be respected as it stands.
22. In the case at hand, the petitioner has raised objections after:
(a) a delay of two days, and
(b) her address on her Election Identity Card at page 12 of the petition is "Hadapsar, Pune".
Having caused the delay in raising objections cannot entitle the petitioner to contend that her objections have not been considered and that the respondents - election authorities have failed in their duties. Based on these contentions, the petitioner cannot seek a direction in exercise of the extraordinary jurisdiction of this Court. Similar challenges having been considered by the Division Benches of the Bombay High Court at Goa and Aurangabad respectively, put to rest the challenge put forth by the petitioner.
23. Therefore, in the light of foregoing discussion and since the Court has already taken a view in two similar cases, we find no distinguishing factor so as to take a different view in the case on hand.
24. In the result, the petition fails and is dismissed accordingly. Rule is discharged. No order as to costs.
Petition dismissed.