JOGINDER SINGH Vs. THE STATE OF HARYANA THROUGH CHIEF SECRETARY TO GOVERNMENT, HARYANA, CIVIL SECRETARIAT, CHANDIGARH AND OTHERS

JUDGEMENT

(1.) THIS has to be read in continuation of my order dated 29th October, 1985.

(2.) THE report of the District Judge, Sirsa, has been received wherein he, after minutely examining the evidence led by both the sides, has recorded a conclusive finding to the effect that "the enrolment of Sajjan Singh, Respondent No. 3 as a voter in village Dhudanwali was an act of deliberate haste, manipulation and not lawful". Though there is hardly any meaningful challenge to this conclusion of the District Judge, yet I have also examined the original record (brought from the office of Respondent No. 2, i.e., the Sub -Divisional Officer, Sirsa), pertaining to the enrolment of Respondent No. 3 as a voter and I find that it well supports the process of reasoning and the conclusion recorded by the District Judge. It is thus manifest that enrolment of Respondent No. 3 as a voter in this village was entirely fraudulent. All that is being contended at this stage by Mr. Naubat Singh the learned Counsel for Respondent No. 3, is that the electoral roll, which formed the basis of the impugned election, cannot be challenged through this writ petition and to sustain this plea of his, he places firm reliance on a Supreme Court decision in Inderjit Baruna and Ors. v. Election Commission of India : A. I. R. 1984 S.C. 1911, and more particularly on the following observations made therein: -

(3.) HAVING perused this judgment, I, however, find no merit in the submission of Mr. Naubat Singh. It is no doubt true that in that case too the principal ground to challenge the validity of the elections held in the State of Assam in the year 1983 was that the electoral rolls were not revised before the elections and it amounted to contravention of the provisions of Section 21(2)(a) of the Representation of People Act, 1950, yet the crucial order of the Election Commission dated 7th January 1983, dispensing with the revision of the electoral rolls was never challenged in any manner. It was in the light of this factual position that the challenge to the election on the basis of the unrevised electoral rolls of 1979 was negatived. The factual position in the instant case is materially different. Here the very order dated 11th June, 1983, passed by Respondent No. 2, enrolling Respondent No. 3 as a voter in village Dhudanwali is under challenge and as already indicated this enrolment has been found to be the result of a fraud and manipulation in the office of Respondent No. 2. If this finding is correct, as it is, then I do not see any reason as to why and how this Court lacks any jurisdiction to pronounce upon the legality or validity of the electoral roll on the basis of which the impugned election has been held. In Inderjit Baruna's case (supra) it has nowhere been ruled by their Lordships that the legality or validity of an electoral roll cannot be challenged through a writ petition. All that has been said is that the finality of the electoral rolls cannot be assailed in a proceeding challenging the validity of an election held on the basis of such electoral rolls. The reason is obvious. The preparation of electoral rolls is definitely not a stage in an election process and is something enterior to the alection. So if its legality or correctness cannot be challenged in an election petition under the Act, as is sought to be contended by Respondent's counsel also, then how and why this Court cannot set aside the illegality or the fraud committed in enrolling Respondent No. 3 as a voter for purpose of the impugned election. In somewhat similar circumstances a Division Bench of this Court in Ram Gopal and Ors. v. The State of Haryana, 1981 P. L. J. 182 set aside the election of Sarpanches and Panches held on the "basis of electoral rolls illegally mutilated as a result of deletion of a large number of names including that of the Petitioners by the Electoral Registration Officer" in exercise of its powers under Article 226 of the Constitution of India. Further I am of the considered view that the bar created by Article 329 of the Constitution in matters of impugned election to either House of Parliament or to the State Legislature does not apply to the election to Local Bodies such as Municipalities and Panchayats and the necessary relief in such matters can be granted by way of writ petitions. By this expression of opinion I may not be taken to mean that in normal course a Petitioner is not required to exhaust the remedy available to him under the Act, i.e. by way of election petition, yet in case in hand, as I have already opined vide my order dated 29th October, 1985, the said remedy - in case it was available to the Petitioner -was not adequate and effective remedy for the short reason that the primary challenge or the ground for impugning the election, is what had happened in the office of Respondent No 2. I, therefore, repel the above noted contention of Shri Naubat Singh.