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2013 Supreme(Bom) 2295
In the High Court of Bombay at Aurangabad
A.H. JOSHI & RAVINDRA V. GHUGE, JJ.
Sumit Santosh Sahadev (Varma)
Versus
The Electoral Registration Officer & Others
Writ Petition No. 9017 of 2013
Decided on : 21-11-2013
For the Petitioner:N.V. Gaware, Advocate.
For the Respondents:R1, Alok Sharma, Advocate, R2 & R3, U.S. Malte, Advocate.
Headnote:Mumbai Municipal Corporation Act, 1888 - Section 7-A - Voter’s list for election of Municipal Corporation. - Since Section 7-A of Act mandates that voter’s list at Assembly must be used as basis for election of Municipal Corporation hence separate voter’s list for Municipal Corporation Election not required to be prepared. - The list of voters in vogue in relation to Assembly Elections, is to be the basis for Municipal Corporation elections, 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, 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 7-A is only use of list of voters in existence for Assembly Elections as a voters list. However, it shall not imply that the provisions of the Representation of People Act and Rules of 1960, stand bodily incorporated.
The scheme of Section 7-A of the MMC 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 7-A of the MMC 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 suggest a direct or indirect mandate of law that such bodily incorporation is the legislative mandate. No such mandate is apparent, even when Section 7-A is read and seen from any angle.
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.
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 his name in the voters list for the purpose of Elections of Ahmednagar Municipal Corporation.
3. Present writ petition and few more petitions espousing similar cause were heard on 13.11.2013 till 6.00 p.m. and the judgment was reserved.
4. The petitioner claims that:-
[a] He is a resident of Ahmednagar.
[b] He has applied for inclusion of his name in the voters list on 25th September, 2013.
[c] As per the programme regulating elections declared by the State Election Commission for the purpose of preparation of voters list, the respondent No.1 was to publish the Final Voters' list on 13.11.2013 under Section 7A of the Maharashtra Municipal Corporation Act ("MMC Act" hereinafter, for the sake of brevity). The electoral role under the Representation of Peoples Act, 1950 ("Act of 1950" hereinafter, for the sake of brevity.
[d] His name is not included in the provisional voters' list.
[e] Bar has been created by Section 23(3) of the Act of 1950 to include any person in the electoral roll after the last date of nominations.
[f] If the petitioner's name is not included in the voters list, he would be unable to avail the opportunity and right for nomination as a candidate.
[g] Hence, the petitioner is before this court and prays for a direction to respondent No.1 to include his name in the voters list of Ahmednagar city.
5. The petitioner's submissions made before us are summarized as follows:
[a] Voters list for the purpose of elections to Ahmednagar Municipal Corporation is a matter governed by Section 7A of the MMC Act.
[b] Section 7A thereof, provides that the voters list of Assembly Elections, as in existence and prepared under the provisions of the Act of 1950 shall be the basis for the Municipal Corporation elections.
[c] Reference to Section 7A of the MMC Act results in bodily incorporation of the entire scheme for preparation of the voters list, commencing from Sections 21 to 27, both inclusive; and also the Registration of Electors Rules, 1960 (hereinafter referred to as, ”the Rules of 1960”).
[d] As the petitioner's request for inclusion is undecided, petitioner is entitled for the relief sought.
6. The writ petition is opposed on the following ground -
[a] The voters list to be used for elections of Municipal Corporation is the voters list as in vogue for the Assembly, as revised from time to time, under the scheme of the Act of 1950 and Rules of 1960.
[b] The scheme and model as provided under the Act of 1950 and Rules of 1960 is not made applicable in so far as inclusion, amendment etc. for the purpose of local self government i.e. the elections to the Municipal Corporation are concerned.
[c] The updation of voters list as is being done as an ongoing procedure by Electoral Registration Officer, for purposes of Assembly Electoral rolls is independent of the elections of Municipal Corporations.
[d] The claim for inclusion of the petitioner's name in the voters' list will be gone into as per the procedure laid down in the Act of 1950 and the Rules of 1960. However, petitioner does not have a legal right under any law to claim that his name must be included before a date fixed for nomination.
[e] Therefore, a direction to include petitioner's name keeping in view the Municipal Corporation's election cannot be issued as petitioner's claim is not supported by any legal right for that purpose.
7. Respondents have placed reliance on a reported judgment in the case of Savio O. Fernandes and others Vs. State Election Commission and others (AIR 1996 Bombay 343) as followed by this court in Ramdas Nana Andhale Vs. Electoral Officer and others in W.P. No. 8720 of 2013 (Coram: B.P. Dharmadhikari and Ravindra V. Ghuge, JJ.), dated 23rd October. 2013.
8. We have examined the respective submissions. The question which arises for consideration formula
