CANTONMENT BOARD SHILLONG Vs. VIJAY RAJ SHAH

JUDGEMENT

(1.) Both these writ petitions are directed against the judgment and order dated 30-4-2010 passed by the learned Additional District Judge, Shillong in Election Petition No.1(H) of 2008 holding the election of Member of Cantonment Board from Ward No. III of the Cantonment Board, Shillong to be invalid on the ground that the nomination of the other candidate had been improperly rejected. Both the writ petitions involve a common question of fact and of law, and were accordingly heard together and are now being disposed of by this common judgment.

(2.) For the sake of convenience, I shall first deal with WP(C) No. 154(SH) of 2010 and my decision thereon will also govern WP(C) No. 169(SH) of 2010. The election for Members of the Cantonment Board, Shillong from seven Wards was notified on 26-3-2008 in terms of Rule 20 of the Cantonment Electoral Rules, 2007 ("the Rules" for short). The respondent No. 1(who is the respondent No. 2 in WP(C) No. 169(SH) of 2010) and the respondent No. 2 (who is the writ petitioner in WP(C) No. 169(SH) of 2010) filed their nomination papers before the Returning Officer of the Cantonment Board. The nomination paper filed by the respondent No. 1 was, however, objected by the respondent No. 3(who is the respondent No. 3 in WP(C) No. 169(SH) of 2010) on the ground that he was not a resident of Cantonment area. After hearing the objector and the other candidates on the date of scrutiny, the nomination paper of the respondent No. 1 was rejected by the Returning Officer under Rule 26(4) of the Rules vide the order dated 19-4-2008. The respondent No. 1 thereafter filed Election Petition No. 1(H) of 2008 before the learned Additional District Judge questioning the legality of the election and for holding a fresh election. The case was contested by the petitioner-Board as well as the respondent 2 by filing their respective written statements. Both the parties adduced their respective evidence in the trial. After the trial, the trial court passed the impugned judgment and order holding that the nomination paper of the respondent No. 1 had been improperly rejected and that the election of Ward No. III of the Cantonment Board had been improperly held and was, therefore, void.

(3.) The case of the petitioner-Board is that during preparation of the Electoral Roll for the election in June, 2007, the respondent No.1 was a resident of Holding No. 20J.B., Shillong wherein he resided as a trespasser in an unauthorized and illegal construction, which was subsequently demolished on 22- 11-2007 by the petitioner-Board whereafter he shifted his residence to Harihar Dairy, Upper Mawprem area of Shillong: Upper Mawprem is outside the territorial jurisdiction of the Cantonment limits. It is also pointed out by the petitioner that the respondent No. 1 had contested the Meghalaya Legislative Assembly Election, 2008 from 21, Mawprem Assembly Constituency, which he eventually lost and that in that election, respondent 1, in accordance with the procedural requirements, had declared by affidavit his residential address as Upper Mawprem, Shillong-2, East Khasi Hills District, a fact which was admitted by himself in his crossexamination. It is also pointed out therein that he did not state in the same affidavit that Upper Mawprem, Shillong-2 was his temporary address nor did clarify that Holding No. 40 JB, Shillong Cantonment was his permanent address. It is therefore contended by the petitioner that as the petitioner was admittedly a resident of Upper Mawprem on 11-2-2008 (when the affidavit was sworn by him), he did not fulfill the condition precedent under section 28(1) of the Cantonment Act, 2006 ("the Act") for his enrolment as an elector in the Shillong Cantonment Electoral Roll. According to the petitioner-Board, respondent 1 submitted his application on 2-4-2008 in Form III under Rule 19(2) of the Rules praying for inclusion of his name in the Electoral Roll of Ward No. VI, Holding No. 40 JB of the Cantonment, but the application was rejected by the Nominee of the President, Cantonment Board, Shillong on the ground that he was residing outside the Cantonment area upto 11-2-2008 and did not comply with the mandatory requirement of six months prior habitation in the Cantonment area under Section 28 of the Act.