# Mangal Dev and another v. The State Election Commission and others

- **Citation:** (2005) 2 ILRA 489
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-05-26
- **Case number:** Civil Misc. Writ Petition No. 40829 of 2005
- **Bench:** Dr. B.S. Chauhan, Dilip Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mangal-dev-and-another-v-the-state-election-commission-and-others-40480
- **Pages:** 7

## Headnote

Sri S.N. Singh
Sri P.N. Rai
Sri M.D. Singh 'Shekar'
Sri C.K. Rai
S.C.

U.P. Panchayat Raj Act 1947-Section 9-
(8)-Proviso 2-preperation of electoral
roll-name of petitioner alongwith his 3
children
was
already
on
previous
electoral roll-the authority deleted the
name without Notice-behind the back of
petitioner-held order dt. 27.4.05 deleting
the
name
of
petitioner
declared
unenforceable and un-executable-their
name
shall
be
treated
existing
on
provisional as well as final voter list.

Held: Para 21

In
view
of
the
decision
of
the
Constitution Bench judgment of the
Hon'ble Apex Court in Udit Narain Singh
Malpaharia
Vs.
Member,
Board
of
Revenue, Bihar, AIR 1963 SC 786, the
petitioner no.2 and three children of
petitioners have a right to ignore the
order passed by the Sub Divisional
Magistrate, Meja, as it was passed
behind their back. To that extent, the
order impugned dated 27.04.2005 is
declared to be unenforceable and inexecutable and we direct that their
names shall be treated to be existing in
the provisional as well as in the final
voter list.
Case law discussed:
AIR 1966 SC 1942
AIR 1967 SC 1910
AIR 1968 SC 49
AIR 1977 SC 757
AIR 1979 SC-1060
AIR 1984 SC-885
1987 SCC (3) 693
AIR 1990 SC-166
AIR 1991 SC-2288
AIR 1998 SC-2496
AIR 1961 SC-751
AIR 1981 SC 711
AIR 1988 SC-2255
1994 (1) SCC-269
2001 (4) SCC-309
2001 (5) SCC-581
2002 (4) SCC-380
2003 (5) SCC-413
2004 (2) SCC-297
2004 (3) SCC-48
2005 (2) SCC-720

## Text

2 All] Indian Oil Corporation & others V. Asstt. Labour Commissioner (Central) & others 489
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.05.2005

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No. 40829 of 2005

Mangal Dev and another ...Petitioners
Versus
The State Election Commission and
others

 ...Respondents

Counsel for the Petitioners:
Sri Radha Kant Ojha
Sri Satyanshu Ojha

Counsel for the Respondents:
Sri S.N. Singh
Sri P.N. Rai
Sri M.D. Singh 'Shekar'
Sri C.K. Rai
S.C.

U.P. Panchayat Raj Act 1947-Section 9-
(8)-Proviso 2-preperation of electoral
roll-name of petitioner alongwith his 3
children
was
already
on
previous
electoral roll-the authority deleted the
name without Notice-behind the back of
petitioner-held order dt. 27.4.05 deleting
the
name
of
petitioner
declared
unenforceable and un-executable-their
name
shall
be
treated
existing
on
provisional as well as final voter list.

Held: Para 21

In
view
of
the
decision
of
the
Constitution Bench judgment of the
Hon'ble Apex Court in Udit Narain Singh
Malpaharia
Vs.
Member,
Board
of
Revenue, Bihar, AIR 1963 SC 786, the
petitioner no.2 and three children of
petitioners have a right to ignore the
order passed by the Sub Divisional
Magistrate, Meja, as it was passed
behind their back. To that extent, the
order impugned dated 27.04.2005 is
declared to be unenforceable and inexecutable and we direct that their
names shall be treated to be existing in
the provisional as well as in the final
voter list.
Case law discussed:
AIR 1966 SC 1942
AIR 1967 SC 1910
AIR 1968 SC 49
AIR 1977 SC 757
AIR 1979 SC-1060
AIR 1984 SC-885
1987 SCC (3) 693
AIR 1990 SC-166
AIR 1991 SC-2288
AIR 1998 SC-2496
AIR 1961 SC-751
AIR 1981 SC 711
AIR 1988 SC-2255
1994 (1) SCC-269
2001 (4) SCC-309
2001 (5) SCC-581
2002 (4) SCC-380
2003 (5) SCC-413
2004 (2) SCC-297
2004 (3) SCC-48
2005 (2) SCC-720

(Delivered by Hon'ble Dr. B.S. Chauhan J.)

1. This writ petition has been filed
for quashing the order dated 27.04.2005
(Annex.8) passed by the respondent no.3
by which the names of the petitioners as
well as their two sons and one daughter
have been deleted from the provisional
voter list prepared for the purpose of
forthcoming Panchayat Raj elections.

2. The facts and circumstances
giving rise to this case are that petitioners
claim
to
be
resident
of
village
Bhanjanpur, Gram Panchayat Payagpur
Ramgarhwa, Block Manda, Tehsil Meja,
District Allahabad. There, they have a
house, immovable properties and their
family members reside therein. Earlier,
names of the petitioners as well as their
490 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
children existed in the voter list and they
had exercised the right to vote in the last
elections for the Parliament as well as the
State Assembly. Their names appeared in
the
voter
list
prepared
for
Gram
Panchayat election also. The elector roll
was published for the purposes of holding
the elections of Gram Panchayat on
01.03.2005. The names of petitioners as
well as their children appeared in the
voter list at Serial Nos. 962, 963, 964, 965
and 966. The election programme was
notified by the Election Commission,
according to which a schedule was fixed
for preparing the final electoral roll. It
provided that any objection for inclusion
or exclusion of the name of any person in
the said provisional voter list would be
entertained from 1st March, 2005 to 15th
March, 2005. Objections, if any, were to
be disposed of from 16th March, 2005 to
1st April, 2005. According to the
petitioners, no objection had been filed
for exclusion of their names from the
provisional voter list during the said
stipulated period. Shri Surya Bali Bind,
the respondent no.5, impleaded by the
Court on the application moved by him,
filed objections for exclusion of the
names of the petitioners and their three
children on 13.03.2005. No notice had
ever been served upon any of the
petitioners
or
their
children.
No
opportunity of hearing had ever been
given to them. When the petitioner no1.
came to know that certain proceedings
were pending for exclusion of his name,
he filed an affidavit on 23.03.2005
pointing out that the objection filed for
exclusion of their names was not based on
correct factual position. Subsequently,
petitioners did not receive any notice or
any
information.
However,
vide
impugned order dated 27.04.2005, names
of the petitioners and their three children
have been excluded from the voter list.
Hence, the present petition.

3. Shri Radha Kant Ojha, learned
counsel for the petitioners has submitted
that neither the statutory provisions
provided under the U.P. Panchayat Raj
Act, 1947 (hereinafter called ''the Act
1947') nor the U.P. Panchayat Raj
(Registration of Electors) Rules, 1994
(hereinafter called ''the Rules 1994') have
been followed. The respondent authority
had no competence to entertain the
application/objection for exclusion of
names of the petitioners and their children
after 1st April, 2005. No notice had ever
been issued to the petitioners or their
children. Therefore, the order impugned is
without jurisdiction and is nullity.

4. On the contrary, Shri M.D. Singh
"Shekhar", learned counsel appearing for
respondent no.5, Shri Surya Bali Bind has
submitted that on 10th May, 2005, certain
guidelines have been issued by the State
Election Commission by which the
Authority concerned had the competence
to
entertain
objections
even
after
01.04.2005. Petitioners had been served
notices
by
U.P.C.
(Under
Postal
Certificate) and also by Dasti service.
Notice was sent to the house of petitioner
no.1. His wife refused to accept the same,
therefore, it was affixed at his house. Law
does not provide for giving separate
notices to the voters if they are members
of the same family whose names are to be
deleted. No fault can be found with the
procedure adopted by the authority.
Petition is liable to be dismissed.

5. Vide order dated 19th May, 2005,
we had directed the Authority concerned,
the learned Sub Divisional Magistrate,
Meja to remain present before this Court
2 All] Mangal Dev and another V. The State Election Commission and others 491
along with the records and in compliance
thereof, Shri Anjani Kumar Singh, Sub
Divisional Magistrate, Meja is present
along with all original records. We have
heard him in person as well as Shri C.K.
Rai, learned Standing Counsel for the
State and Shri P.N. Rai, learned counsel
for the State Election Commission.

6. The procedure in this regard is
prescribed under the Act, 1947 and Rules,
1994. Section 9 of the Act, 1947 deals
with the procedure for preparing the
electoral
roll
for
each
territorial
constituency. Sub-section (7) thereof
provides that every person is entitled to be
registered as a voter only in one
constituency. Sub-section (8) provides
that where the State Election Commission
is satisfied after making certain 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 get 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. However, the second proviso
thereto provides that no deletion or
correction of any entry in respect of any
person affecting his interest adversely
without
giving
him
reasonable
opportunity of being heard in respect of
the action proposed to be taken in relation
to him. Rules, 1994 provide for a detailed
procedure. Rule 8 thereof provides for
publication of rolls in draft giving wide
publicity in the Panchayat area and the
copy thereof shall be made available for
inspection by the people at large. Rule 9
provides for filing claims for inclusion
and exclusion of the names of any person.
The objections so filed have to be
registered and proper entries are to be
made
as
required
under
Rule
10.
However, Rule 11 reads as under:-

"11. Period for lodging claims and
objections.- Every application referred to
in Rule 9 or in Rule 10 shall be made
within a period of seven days from date of
publication of the roll in draft under Rule
8.

7. Rules 13 and 14 provide for
procedure for entertaining objections and
Rule 15 mandatorily requires for service
of notice after being satisfied, prima facie,
regarding
the
genuineness
of
the
objections for inclusion or exclusion of
the names. The notice is to be served
upon the person along with a copy of the
objection and notice is required to be
served under sub-rule (3) personally and
in default or personal service, shall be
served by affixing a copy thereof at the
residence. Rule 16 further provides for
enquiry into claims and objections. It lays
down a procedure for leading the
evidence on the issue. Rule 17 provides
that any person included inadvertently
may be deleted from the electoral roll.
Rule 19 provides for final publication of
electoral roll.

8. In the instant case, it is admitted
by Shri P.N. Rai, learned counsel
appearing
for
the
State
Election
Commission that the draft roll had been
prepared
on
01.01.2005
and
was
published on 01.03.2005. There is no
dispute that it was published on 1st
March, 2005. In view of the statutory
provisions
contained
in
Rule
11,
objections could be filed only up to 8th
March, 2005. We fail to understand as
under what circumstances, the Election
Commission could fix a date for filing
492 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
objections
up
to
01.04.2005.
No
explanation could be furnished by the
learned
counsel
appearing
for
the
respondents as under what circumstances
and by what authority of law, any
objection
could
be
entertained
for
inclusion or exclusion of the names in the
voter list after 8th March, 2005 and even
if the direction has been issued by the
Election Commission in contravention of
the Statutory Rules, that cannot be given
effect to.

9. There is no scope of argument
that the executive instructions can be
issued in contravention of the statutory
provisions. The issue as to whether
executive instructions can override the
statutory Rules is no-more res integra. A
Constitution
Bench
of
the
Hon'ble
Supreme Court, in B.N. Nagarajan & ors.
Vs. State of Mysore & ors., AIR 1966 SC
1942, has observed as under:-

"It is hardly necessary to mention
that if there is a statutory rule or an Act on
the matter, the executive must abide by
that Act or Rule and it cannot in exercise
of its executive powers under Article 162
of the Constitution ignore or act contrary
to that rule or the Act."

10. Similarly, another Constitution
Bench of the Hon'ble Supreme Court in
Sant Ram Sharma Vs. State of Rajasthan
& Ors., AIR 1967 SC 1910, has observed
as under:-

"It is true that the Government
cannot amend or supersede statutory
Rules by administrative instruction, but if
the Rules are silent on any particular
point, the Government can fill-up the gap
and supplement the rule and issue
instructions not inconsistent with the
Rules already framed."

11. The law laid down above, has
consistently been followed and it is settled
proposition of law that an Authority
cannot
issue
orders/office
memorandum/executive instructions in
contravention of the statutory Rules.
However, instructions can be issued only
to supplement the statutory rules but not
to supplant it. Such instructions should be
subservient to the statutory provisions.
(Vide The Commissioner of Income-tax,
Gujarat Vs. M/s. A. Raman & Co., AIR
1968 SC 49; Union of India & ors. Vs.
Majji Jangammayya & ors., AIR 1977 SC
757; The District Registrar, Palghat & ors.
Vs. M.B. Koyyakutty & ors., AIR 1979
SC 1060; Ramendra Singh & ors. Vs.
Jagdish Prasad & ors., AIR 1984 SC 885;
P.D. Aggarwal & ors. Vs. State of U.P. &
ors., (1987) 3 SCC 622; M/s. Beopar
Sahayak (P) Ltd. & Ors. Vs. Vishwa Nath
& Ors., (1987) 3 SCC 693; Paluru
Ramkrishnaiah & ors. Vs. Union of India
& Anr., AIR 1990 SC 166; Comptroller &
Auditor General of India & ors. Vs.
Mohan Lal Mehrotra & ors., AIR 1991
SC 2288; and C. Rangaswamaiah & ors.
Vs. Karnataka Lokayukta & ors., AIR
1998 SC 2496).

12. The Constitution Bench of the
Hon'ble Supreme Court, in Naga People's
Movement of Human Rights Vs. Union of
India., AIR 1998 SC 431, held that the
executive
instructions
are
binding
provided the same have been issued to fill
up
the
gap
between
the
statutory
provisions and are not inconsistent with
the said provisions.

13. Thus, it is settled law that
executive instructions cannot amend or
2 All] Mangal Dev and another V. The State Election Commission and others 493
supersede the statutory rules or add
something therein. The orders cannot be
issued in contravention of the statutory
rules for the reason that an administrative
instruction is not a statutory rule nor does
it have any force of law; while statutory
Rules have full force of law as held by the
Constitution
Bench
of
the
Hon'ble
Supreme Court in State of U.P. & ors. Vs.
Babu Ram Upadhya, AIR 1961 SC 751;
and State of Tamil Nadu Vs. M/s. Hind
Stone etc. etc., AIR 1981 SC 711.

14. Similar view has been reiterated
in Union of India & Ors. Vs. Sh.
Somasundaram Viswanath & Ors., AIR
1988 SC 2255; Union of India & Anr. Vs.
Amrik Singh & Ors., (1994) 1 SCC 269;
Union of India & Ors. Vs. Rakesh Kumar,
(2001) 4 SCC 309; Swapan Kumar Pal &
Ors. Vs. Samitabhar Chakraborty & Ors.,
(2001) 5 SCC 581; Khet Singh Vs. Union
of
India,
(2002)
4
SCC
380;
Laxminarayan R. Bhattad & Ors. Vs.
State of Maharashtra & Anr., (2003) 5
SCC 413; D.D.A. & Ors. Vs. Joginder S.
Monga & Ors., (2004) 2 SCC 297; ITW
Signode India Ltd. Vs. Collector of
Central Excise, (2004) 3 SCC 48; and
Pahwa
Chemicals
(P)
Ltd.
Vs.
Commissioner of Central Excise, New
Delhi, (2005) 2 SCC 720, and it has been
observed that statutory rules create
enforceable rights which cannot be taken
away by issuing executive instructions.

15. In the instant case, admittedly,
objections were filed on 13th April, 2005,
thus it was not within the competence of
the Statutory Authority to entertain the
same. Therefore, all the proceedings taken
by him subsequent thereto are null and
void being without jurisdiction for the
reason that the Election Commission
could not extend the period of limitation
for filing objections beyond statutory
limit, i.e. seven days as provided under
Rule 11 of the Rules, 1994.

16. Even otherwise, the original
records reveal that in the proforma where
the names of the persons against whom
objections have been received, contains
eight columns. On the first page, the
names of 37 people have been mentioned.
In the note thereof, certain remarks have
been made. On the next page, the names
of five persons, i.e. petitioners and their
three children have been mentioned in a
different hand writing and there had been
further addition in the footnote thereof by
the different ink, though in the same hand
writing and it had been signed on 29th
March, 2005. In column no.3, where the
name of the applicant/objector is to be
mentioned, the names of the petitioners
and their three children have been
mentioned. The name of the objector has
not been mentioned anywhere. Matter has
been referred to the Sub Divisional
Magistrate,
Meja
by
the
Block
Development Officer on 29th March,
2005 along with the documents filed by
the parties. Affidavit filed by respondent
no.5 Shri Surya Bali Bind has been
notarized on 31st March, 2005. We fail to
understand that if the papers had been
furnished
to
the
Sub
Divisional
Magistrate,
Meja
by
the
Block
Development Officer on 29th March,
2005, then how it contained the affidavit
attested and verified on 31st March, 2005.
There is no doubt that the report
submitted by the Block Development
Officer to the Sub Divisional Magistrate,
Meja is ante dated and it is a clear cut
case of maneuvering with the collusion of
respondent no.5 to oust the petitioner no.1
from the zone of contesting the election.
The Sub Divisional Magistrate, Meja is
494 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
present before us and could not furnish
any explanation as to how it was possible
for the Block Development Officer to
forward the documents on 29th March,
2005 if the affidavit of respondent no.5
has been attested on 31st March, 2005.
The order impugned dated 27.04.2005 is
based on evidence which includes the
affidavits filed by the parties. The
findings
recorded
by
the
Statutory
Authority are perverse, being based on
wrong,
unreliable,
manipulated
and
manufactured evidence.

17. Amendment in the Constitution
by adding part IX-A confers upon the
local
self
Government
a
complete
autonomy on the basic democratic unit
unshackled from official control. Thus,
exercise of any power having effect of
destroying the constitutional institution
besides being outrageous is dangerous to
the democratic set-up of this country,
therefore, an elected official cannot be
permitted to be removed unceremoniously
without
following
the
procedure
prescribed by law, in violation of the
provisions
of
Article
21
of
the
Constitution, by the State adopting a
casual
approach
and
resorting
to
manipulations
to
achieve
a
ulterior
purpose. The Court being the custodian of
law cannot tolerate any attempt to thwart
the institution.

18. The democratic set-up of the
country has always been recognised as a
basic feature of the Constitution. Like
other features eg. Supremacy of the
Constitution; Rule of law; Principle of
separation of powers; Power of judicial
review under Articles 32, 226 and 227
etc. (Vide His Holiness Keshwananda
Bharti Sripada Galvaru & Ors Vs. State of
Kerala, AIR 1973 SC 1461; Minerva
Mills Ltd., Vs. Union of India & Ors, AIR
1980 SC 1789; R.C. Poundyal Vs. Union
of India & Ors., AIR 1993 SC 1804;
Special Reference No. 1 of 2002 In re
(Gujrat Assembly Election matter) (2002)
8
SCC
237;Union
of
India
Vs.
Association for Democratic Reforms, AIR
2002 SC 2112; and People's Union for
Civil Liberties Vs. Union of India & Ors.,
AIR 2003 SC 2363).

19. The right of vote, elect or contest
for any post is a statutory right and such
rights are subject to the limitations
provided therein. (Kabool Singh Vs.
Kundan Singh, AIR 1970 SC 340; and
Thampanoor Ravi Vs. Charupara Devi,
(1999) 8 SCC 74).

20. In view of the above, the Statute
confers the right upon every eligible
person to vote, elect or contest the
election as per the statutory provisions.
The rights so conferred is a right of an
individual
as
an
eligible
elector.
Therefore, a person can be deprived of
right to vote, contest or elect only as per
the requirement of statutory provision and
not otherwise.

21. It has been admitted by the
Authority concerned and it is proved from
the record produced before us that no
notice had ever been served upon the
petitioner no.2 and three children of the
petitioners, whose names stood deleted
from the provisional voter list. To that
extent, it cannot be held that the order
impugned in respect of the entire family
can be held to be sustainable in the eyes
of law. Thus, so far as the petitioner no.2
and three children of petitioners are
concerned, the order impugned is declared
to be void ab initio, as the same suffers
from non-compliance of the principles of
2 All] Mangal Dev and another V. The State Election Commission and others 495
natural justice. In view of the decision of
the Constitution Bench judgment of the
Hon'ble Apex Court in Udit Narain Singh
Malpaharia
Vs.
Member,
Board
of
Revenue, Bihar, AIR 1963 SC 786, the
petitioner no.2 and three children of
petitioners have a right to ignore the order
passed by the Sub Divisional Magistrate,
Meja, as it was passed behind their back.
To that extent, the order impugned dated
27.04.2005
is
declared
to
be
unenforceable and in-executable and we
direct that their names shall be treated to
be existing in the provisional as well as in
the final voter list.

22. So far as Shri Mangal Dev,
petitioner no.1 is concerned, as per the
election schedule, objections for inclusion
or exclusion in the voter list could have
been
filed
only
by
01.04.2005.
Admittedly, objections have been filed by
respondent no.5 on 13.05.2005. The
procedure required for the purpose has not
been followed, as mentioned above. The
order is based on manufactured/concocted
evidence. The finding is perverse being
based on no reliable evidence.

23. In such a fact situation, we have
no option but to allow the writ petition
and quash the impugned order dated
27.04.2005.

24. The writ petition succeeds and is
allowed with the cost of Rs.10,000/-
(Rupees Ten Thousand Only) which is to
be shared by the State as well as by
respondent no.5 equally. The order
impugned dated 27.04.2005 passed by
respondent
no.3
is
quashed.
The
petitioners shall be entitled for all
consequential reliefs.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.06.2005

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE ARUN TANDON, J.

Criminal Misc. Writ Petition No. 5840 Of 2005

Mukesh and others
 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Gaurav Sharma

Counsel for the Respondents:
C.S.C.

Constitution of India, Article 226/227readwith Code of Criminal ProcedureSection
172/173-accused/
Petitionerdemand
of
the
copy
of
statement
recorded under Section 161 Cr.P.C.-prior
to
reaching
the
stage
of
filing
chargesheet-contents of case diary can
not be disclosed-otherwise the accused
might deter the informant-High Court
can not be permitted to weight the
evidence under Article 227.

Held: Para 11,30,32,45

The
Hon'ble
Supreme
Court
also
cautioned not to disclose the contents of
the case diary to the accused for the
reason that it may disclose the identity
of
the
informant
who
gave
some
information
which
resulted
in
investigation into a particular aspect.
The public interest demands that such an
entry is not made available to the
accused which might deter the informant
from giving any information to assist the
Investigating Agency.

Thus, in view of the above, the inference
can be drawn that the accused are not
entitled
to
seek
the
copy
of
the
statement of any witness recorded under