# Jay Devi Dubey v. State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 1572
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-04-19
- **Case number:** Misc. Single No. 11311 of 2018
- **Bench:** Rakesh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jay-devi-dubey-v-state-of-u-p-ors-44349
- **Pages:** 7

## Headnote

C.S.C., Aprajita Bansal
1 All. Jay Devi Dubey Vs. State of U.P. & Ors.
1573
A. Election petition filed - challenging
election on ground-some persons illegally
elected in electoral roll-not maintainablealternative
remedy-Rule-10-objectionany
entry
in
electoral
roll-election
petition rightly rejected.

B. Held, After exhaustively dealing with
the provisions of the Act and the Rules
pertaining to preparation and revision of
electoral
rolls
mentioned
above,
a
Division Bench of this Court in Mudi v.
State Election Commission and others,
AIR 2001 All 21 has opined that the
election of a returned candidate cannot
be challenged on the ground that the
electoral roll was incorrectly prepared.
Paras of the said report is being extracted
below:

In view of the aforesaid provision, a
challenge to the correctness of electoral
roll cannot be permitted to be raised after
the publication of the final electoral roll.
If a person feels that name of a dead
person or a person who is not eligible to
be included in the electoral roll has been
included in the electoral roll, his remedy
lies in filing an application at the
opportune time for correction of the
entry. Similarly, if the name of someone
has not been included in the electoral roll
though he is eligible for the said purpose,
he ought to make an application in that
regard within the prescribed period. The
decision
of
the
Assistant
Electoral
Registration Officer in these matters is
subject to an appeal and sub-rule (4) of
Rule 21A attaches finality to the order
passed in appeal. The provisions of the
Act and the Rules thus provide a
complete safeguard against any wrong
inclusion or wrong omission of name in
the electoral roll. After publication of the
final roll, the same is immune from any
challenge at a subsequent stage. Once
the process of election has begun, they
can neither be challenged by means of a
writ petition under Article 226 of the
Constitution nor in an election petition
filed under Section 12C of the U. P.
Panchayat Raj Act which gives the
procedure for challenging the election of
a person as pradhan.
Election Petition dismissed. (E-8)

List of cases cited: -

## Text

1572 INDIAN LAW REPORTS ALLAHABAD SERIES
cause notice issued for the purposes of
suspension of the licence of the fair price
shop."
(emphasis supplied)

8. In Laloo Singh v. State, (2015) 6
All LJ 613 this Court has held that the
cancellation of an agreement/license of a
party is a serious business and cannot be
taken lightly. In order to justify the action
taken to cancel such an agreement/license,
the authority concerned has to act fairly
and
in
complete
adherence
to
the
rules/guidelines framed for the said
purposes including the principles of
natural justice.

9. This Court in Rajpal Singh v. State
of U.P. and others, 2008 (26) LCD 891
has held that where fair price shop license
of a dealer is cancelled by placing reliance
on the report of the Supply Inspector and
the copy of the report is not furnished to
the
dealer,
such
an
order
is
in
contravention of the principles of natural
justice and is liable to be set aside.

10. In the present case, a perusal of
the order dated 28.2.2016 would show that
the license of the petitioner has been
cancelled only on the basis of the
statements of the card holders recorded
behind the back of the petitioner and that
too without supplying copies of the said
statements to the petitioner and without
affording an opportunity to the petitioner
to cross examine the witnesses. A copy of
the report submitted by the Area Food
Officer has also not been supplied to the
petitioner. Moreover, in his order, the
respondent no. 3 has not at all discussed
the grounds urged by the petitioner in his
reply
in
support
of
his
defence.
Admittedly, the license of the petitioner
has been cancelled without affording any
opportunity of hearing to the petitioner and
without holding any inquiry, whatsoever.

11. In view of the settled legal
position, the cancellation of the petitioner's
fair price shop agreement / license is
ostensibly
in
contravention
of
the
principles of natural justice and cannot be
sustained. The Appellate Authority has
also failed to rectify the error committed
by the Sub-Divisional Magistrate and as
such the order passed by the Appellate
Authority is also liable to be set aside
alongwith the order of the Competent
Authority.

12. For the aforesaid reasons, the
writ petition is allowed. The impugned
order dated 28.06.2016 passed by the SubDivisional Magistrate, Tehsil Rudauli,
District Faizabad and the order dated
17.02.2017 passed by the Additional
Commissioner (Food), Faizabad Division,
Faizabad are hereby quashed.

13. No order as to cost.
----------
(2020)1ILR 1572

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.04.2018

BEFORE
THE HON'BLE RAKESH SRIVASTAVA, J.

Misc. Single No. 11311 of 2018

Jay Devi Dubey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Vishva Nath Pratap Singh

Counsel for the Respondents:
C.S.C., Aprajita Bansal
1 All. Jay Devi Dubey Vs. State of U.P. & Ors.
1573
A. Election petition filed - challenging
election on ground-some persons illegally
elected in electoral roll-not maintainablealternative
remedy-Rule-10-objectionany
entry
in
electoral
roll-election
petition rightly rejected.

B. Held, After exhaustively dealing with
the provisions of the Act and the Rules
pertaining to preparation and revision of
electoral
rolls
mentioned
above,
a
Division Bench of this Court in Mudi v.
State Election Commission and others,
AIR 2001 All 21 has opined that the
election of a returned candidate cannot
be challenged on the ground that the
electoral roll was incorrectly prepared.
Paras of the said report is being extracted
below:

In view of the aforesaid provision, a
challenge to the correctness of electoral
roll cannot be permitted to be raised after
the publication of the final electoral roll.
If a person feels that name of a dead
person or a person who is not eligible to
be included in the electoral roll has been
included in the electoral roll, his remedy
lies in filing an application at the
opportune time for correction of the
entry. Similarly, if the name of someone
has not been included in the electoral roll
though he is eligible for the said purpose,
he ought to make an application in that
regard within the prescribed period. The
decision
of
the
Assistant
Electoral
Registration Officer in these matters is
subject to an appeal and sub-rule (4) of
Rule 21A attaches finality to the order
passed in appeal. The provisions of the
Act and the Rules thus provide a
complete safeguard against any wrong
inclusion or wrong omission of name in
the electoral roll. After publication of the
final roll, the same is immune from any
challenge at a subsequent stage. Once
the process of election has begun, they
can neither be challenged by means of a
writ petition under Article 226 of the
Constitution nor in an election petition
filed under Section 12C of the U. P.
Panchayat Raj Act which gives the
procedure for challenging the election of
a person as pradhan.
Election Petition dismissed. (E-8)

List of cases cited: -

1. Jyoti Basu v. Debi Ghosal, (1982) 1 SCC 691

2. Mudi v. State Election Commission and
others, AIR 2001 All 21

(Delivered by Hon'ble Rakesh Srivastava, J.)

1. Heard Shri Vishva Nath Singh,
learned counsel for the petitioner, the
learned Standing Counsel for the Staterespondents and Ms. Aprajita Bansal,
learned counsel appearing on behalf of
respondent no. 2.

2. The order dated 11.08.2017 passed
by the Prescribed Authority, dismissing
the election petition filed by the petitioner
as well as the order dated 10.10.2017
passed by District Judge, Ambedkar Nagar
dismissing the revision preferred by the
petitioner are under challenge in the
present writ petition.

3. The petitioner contested the
election for the office of Pradhan of Gram
Panchayat, Mahmadpur Odarpur which
was held in the year 2015. In the said
election 1160 votes were cast out of which
the petitioner secured 359 votes whereas
the returned candidate Reena Dubey
polled 372 votes. Reena Dubey was
declared elected by 13 votes. The
petitioner filed an election petition under
Section 12-C of the U.P. Panchayat Raj
Act, 1947 (for short ''Act') challenging the
election of Reena Dubey. The Prescribed
Authority held that improper inclusion or
exclusion of voters in the electoral roll
could not be a ground for challenging the
election.
Consequently,
the
election
1574 INDIAN LAW REPORTS ALLAHABAD SERIES
petition
was
dismissed
as
not
maintainable. The revision preferred by
the petitioner against the said order has
been dismissed by the District Judge at the
admission stage. Both these orders are
under challenge in the present petition.

4. The learned counsel for the
petitioner has submitted that the name of
22 persons who were minors was wrongly
included in the electoral roll. The counsel
submits that section 12-C of the Act does
not prohibit the Prescribed Authority from
entertaining any question regarding the
validity
of
the
electoral
roll.
His
submission is that the electoral roll is
prepared under Section 9 of the Act and
proper
procedure
for
preparing
the
electoral roll was not followed which
attracts Section 12-C of the Act.

5. It is no more res integra that the
right to contest in an election is a statutory
right and the election of an elected
candidate can be declared null and void
only on the grounds provided in the
statutory enactment. In Jyoti Basu v. Debi
Ghosal, (1982) 1 SCC 691, the Apex
Court has opined as under:

"8. A right to elect, fundamental
though it is to democracy, is, anomalously
enough, neither a fundamental right nor a
common law right. It is pure and simple, a
statutory right. So is the right to be
elected. So is the right to dispute an
election. Outside of statute, there is no
right to elect, no right to be elected and no
right to dispute an election. Statutory
creations they are, and therefore, subject
to statutory limitation. An election petition
is not an action at common law, nor in
equity. It is a statutory proceeding to
which neither the common law nor the
principles of equity apply but only those
rules which the statute makes and applies. It is
a
special
jurisdiction,
and
a
special
jurisdiction has always to be exercised in
accordance with the statute creating it.
Concepts familiar to common law and equity
must remain strangers to election law unless
statutorily embodied. A court has no right to
resort to them on considerations of alleged
policy because policy in such matters as those,
relating to the trial of election disputes, is what
the statute lays down. In the trial of election
disputes, court is put in a strait-jacket."
(emphasis supplied)

6. The grounds on which the election
to the office of Pradhan could be
challenged under Section 12-C of the Act
have been enumerated in Section 12-C(1).
Section 12-C(1) reads as under:

"12-C.
Application
for
questioning the elections.--(1) The election
of a person as Pradhan or as member of a
Gram Panchayat including the election of a
person appointed as the Panch of the Nyaya
Panchayat under Section 43 shall not be
called in question except by an application
presented to such authority within such time
and in such manner as may be prescribed on
the ground that--

(a) the election has not been a
free election by reason that the corrupt
practice of bribery or undue influence has
extensively prevailed at the election, or

(b) that the result of the election
has been materially affected--

(i) by the improper acceptance or
rejection of any nomination; or

(ii) by gross failure to comply
with the provisions of this Act or the rules
framed thereunder."

7. In the present case, the election of
respondent no. 7 has not been disputed on
1 All. Jay Devi Dubey Vs. State of U.P. & Ors.
1575
the ground of corrupt practice or undue
influence. The grievance of the petitioner
is that gross illegality was committed in
preparing the electoral roll as 22 minors
have been included as voters although they
were
not
eligible.
The
petitioner's
submission may be correct or incorrect but
the
difficulty
before
the
Prescribed
Authority was that he was bound by the
statutory provisions. Inclusion of ineligible
voters in the electoral roll is not a ground
on which the election of respondent no. 7
could be challenged.

8. Section 9 of the Act envisages an
electoral
roll
for
each
territorial
constituency and Section 9-A deals with
the right to vote. Section 9 (relevant
portion) and Section 9-A which have a
bearing on the controversy at hand are
being extracted below:

"9. Electoral roll for each
territorial constituency.-(1) For each
territorial
constituency
of
a
gram
panchayat, an electoral roll shall be
prepared,
in
accordance
with
the
provisions of this Act and the Rules made
thereunder, under the superintendence,
direction and control of the State Election
Commission.

(1A)
Subject
to
the
superintendence, direction and control of
the
State
Election
Commission,
the
Mukhya Nirvachan Adhikari (Panchayat)
shall supervise, and perform all functions
relating to the preparation, revision and
correction of the electoral rolls in the State
in accordance with this Act and the Rules
made thereunder.

(1B)
.....

(2) The electoral roll referred to
in sub-section (1) shall be published in the
prescribed
manner
and
upon
its
publication it shall, subject to any
alteration. addition or modification made
in accordance with this Act and the Rules
made thereunder, be the electoral roll for
that territorial constituency prepared in
accordance with the provisions of this Act.

(3) Subject to the provisions of
sub-sections (4), (5), (6) and (7) every
person who has attained the age of 18
years on the first day of January of the
year in which the electoral roll is prepared
or revised and who is ordinarily resident in
the territorial constituency of a gram
panchayat shall be entitled to be registered
in the electoral roll for that territorial
constituency.

Explanation to sub-section 3 and
sub-sections 4 to 7 omitted

(8) Where the State Election
Commission is satisfied after making such
enquiry as it may deem fit, whether on an
application made to it or on its own motion
that any entry in the electoral roll should
be corrected or deleted or that the name of
any person entitled to be registered should
be added in the electoral roll, it shall,
subject to the provisions of this Act and
Rules and orders made thereunder, correct,
delete or add the entry, as the case may be:

Provided that no such correction,
deletion or addition shall be made after the
last date for making nominations for an
election in the gram panchayat and before
the completion of that election:

Provided further that no deletion
or correction of any entry in respect of any
person affecting his interest adversely
shall be made without giving him
reasonable opportunity of being heard in
respect of the action proposed to be taken
in relation to him.

(9)
The
State
Election
Commission may, if it thinks it necessary
so to do for the purposes of a general or
bye-election, direct a special revision of
1576 INDIAN LAW REPORTS ALLAHABAD SERIES
the electoral roll for any territorial
constituency of a gram panchayat in such
manner as it may think fit :

Provided that subject to the other
provisions of this Act, the electoral roll for
the territorial constituency, as in force at
the time of issue of any such direction,
shall continue to be in force until the
completion of the special revision so
directed."

Sub-sections 10 to 12 omitted.

9-A Right to vote etc.- Except
as otherwise provided by or under this Act,
every person whose name is for the time
being included in the electoral roll for a
territorial
constituency
of
a
Gram
Panchayat shall be entitled to vote at any
election and be eligible for election,
nomination or appointment to any office in
that gram panchayat or the concerned
Nyaya Panchayat.

Proviso omitted.

9. In exercise of the power conferred
by sub-section (2) of Section 9 and Section
110 of the Act, the State Government has
made
the
U.
P.
Panchayat
Raj
(Registration of Electors) Rules, 1994 (for
short ''Rules'). The Rules lays down the
procedure for preparation and revision of
electoral rolls. Rule 9 enables any person
whose name is not included or whose
name has been wrongly included in the
electoral roll of some other territorial
constituency of the gram panchayat or
whose name is struck off the rolls by
reason of any disqualification, to apply to
the Assistant Electoral Registration Officer
for inclusion of his name in the roll. Rule
10 permits objection to be made against
any entry in the electoral roll either at the
instance of the person concerned or at the
instance of a third person. Rule 16
provides that an Assistant Electoral
Registration Officer shall hold a summary
enquiry into every application in respect of
which notice has been given under Rule 15
and shall record a decision thereon. At the
hearing the person to whom such notice
was issued, shall be entitled to be present
and to be heard. The Assistant Electoral
Registration Officer may, in his discretion
require any person to whom such notice
has been issued to be present and may also
require that the evidence tendered by any
person shall be given on oath and may
administer oath for the purpose. Rule 18
casts a duty on the Assistant Electoral
Registration Officer to take remedial
action if the name of a dead person or of
persons who cease to be, or are not,
ordinarily resident in the area of the
territorial
constituency,
have
been
included in the roll. He is also required to
prepare a list of the names and other
details of such persons and exhibit a notice
on the notice board in his office with a
copy of the list along with the notice as to
the time and place at which the question of
deletion of such names from the roll shall
be
considered
and
further
after
considering. Furthermore, any verbal or
written objections that may be preferred,
he is required to decide whether all or any
of the names be deleted from the rolls.
Rule 19 deals with final publication of the
roll and sub-rules (1) and (2) are being
reproduced below :

"19. Final publication of roll.--
(1) The Electoral Registration Officer shall
thereafter publish the roll together with the
list of amendments under Rules 15, 16. 17
and 18, by making a complete copy
thereof available for inspection and
displaying a notice in Form 7 at his office.

(2) On such publication the roll
together with the list of amendments shall
be
electoral
roll
for
the
territorial
constituency.
1 All. Jay Devi Dubey Vs. State of U.P. & Ors.
1577

(3) ......"

10. Rule 21A provides for appeal and
sub-rule (1) thereof lays down that an
appeal shall lie from any decision of the
Assistant Electoral Registration Officer
under Rules 16, 18 or 21 to the District
Magistrate.

11. Thus, it is apparent that a detailed
and elaborate procedure has been provided
for preparing the electoral roll and it has
been further provided that no correction
alteration or deletion can we made in the
roll after the last date of filing nomination.

12. After exhaustively dealing with
the provisions of the Act and the Rules
pertaining to preparation and revision of
electoral rolls mentioned above, a Division
Bench of this Court in Mudi v. State
Election Commission and others, AIR
2001 All 21 has opined that the election of
a returned candidate cannot be challenged
on the ground that the electoral roll was
incorrectly prepared. Paragraph 8 and 9 of
the said report is being extracted below:

"8. In view of the aforesaid
provision, a challenge to the correctness
of electoral roll cannot be permitted to be
raised after the publication of the final
electoral roll. If a person feels that name
of a dead person or a person who is not
eligible to be included in the electoral roll
has been included in the electoral roll, his
remedy lies in filing an application at the
opportune time for correction of the entry.
Similarly, if the name of someone has not
been included in the electoral roll though
he is eligible for the said purpose, he
ought to make an application in that
regard within the prescribed period. The
decision
of
the
Assistant
Electoral
Registration Officer in these matters is
subject to an appeal and sub-rule (4) of
Rule 21A attaches finality to the order
passed in appeal. The provisions of the Act
and the Rules thus provide a complete
safeguard against any wrong inclusion or
wrong omission of name in the electoral
roll. After publication of the final roll, the
same is immune from any challenge at a
subsequent stage. Once the process of
election has begun, they can neither be
challenged by means of a writ petition
under Article 226 of the Constitution nor
in an election petition filed under Section
12C of the U. P. Panchayat Raj Act which
gives the procedure for challenging the
election of a person as pradhan.

9. Ours is the biggest democracy
and the second most populous country in
the world and, consequently, the electoral
rolls are also big containing large number
of names. The authorities entrusted with
the duty of preparation of electoral roll can
possibly have no personal knowledge
about the correctness of every entry. If the
people of the area do not take appropriate
steps for deletion of the name of a dead
person or the name of a person who is not
qualified to be entered in the electoral roll
of a panchayat, the same may continue to
find place till the time of the election and
voting. It is practically impossible to have
an absolutely accurate electoral roll. The
State machinery has to spend considerable
time and energy in holding an election and
it also involves huge public expenditure. If
the ground of error or mistake in the
electoral roll is entertained, every election
will be under a peril of being set aside
although the authorities have conducted
the election in a most fair and impartial
manner following the Rules and the
candidates have also conducted themselves
fairly
without
committing
even
the
slightest breach of the law. This will lead
to great uncertainly and will not be
1578 INDIAN LAW REPORTS ALLAHABAD SERIES
conducive to the growth of a healthy and
vibrant democracy. Therefore, after the
notification for election has been issued,
no writ petition should be entertained
challenging
the
correctness
of
the
electoral roll. The election of the returned
candidate can also not be challenged on
the said ground either by filing a writ
petition or by means of an election petition
as provided in the statute. However, if
some gross procedural error has been
committed in the preparation of the
electoral roll, like not publishing the draft
electoral roll or not giving opportunity for
making an application for either deletion
or addition of names, the action of the
authorities in such cases will not be
immune from challenge under Article 226
of the Constitution provided the same is
made promptly and before the notification
for holding the election is issued."
(emphasis supplied)

13. In view of the settled legal
position, the election petition filed by the
petitioner challenging the election of
respondent no. 7 to the office of Pradhan,
on the ground that some persons were
illegally included in the electoral roll was
not maintainable and has rightly been
dismissed by the Prescribed Authority. For
the same reason, the revision preferred by
the petitioner against the said order has
been dismissed by the District Judge at the
admission stage. No case for interference
with the impugned orders is made out.

14. The writ petition is absolutely
misconceived and is accordingly dismissed
at the admission stage.

15. Costs made easy.
----------

(2020)1ILR 1577
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.11.2019

BEFORE
THE HON'BLE RAKESH SRIVASTAVA, J.

Misc. Single No. 21408 of 2018

Rama Shankar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ram Kumar Srivastava

Counsel for the Respondents:
C.S.C., Kaushal Mani Tripathi

A. Fair Price shop-license cancelled-on
the basis of-statements & affidavits filed
by card holders submitted behind the
back-such affidavits were not providedno opportunity to cross examine such
card holders-copy of report of area supply
inspector
also
not
provided-grounds
urged in defence has not been dealt in
impugned order-order quashed.

Writ Petition allowed. (E-8)

(Delivered by Hon'ble Rakesh Srivastava,J.)

1. The petitioner was a fair price
shop
licensee.
The
Sub-Divisional
Magistrate, Sadar, Gonda - respondent
no.3 herein, by his order dated 11.04.2018,
has cancelled the license of the petitioner.
The appeal preferred by the petitioner
against the said order has been dismissed
by the Additional Commissioner (Admin),
Devi Patan Mandal, Gonda - respondent
no.2, by his order dated 13.07.2018. Both
the said orders are under challenge in this
writ petition.

2. On the complaint made by one
Manoj Kumar regarding the alleged