2016 Supreme(SC) 753

SUPREME COURT OF INDIA
ANIL R. DAVE, L. NAGESWARA RAO, JJ.
Sunil Kumar Kori & Anr. – Appellants
Versus
Gopal Das Kabra & Ors. Etc. – Respondents
Civil Appeal No. 9728-9729 of 2016 (Arising out of SLP (C) No. 20677-20678 of 2016)
With
Cantonment Board, Panchamarhi - Appellant
Versus
Gopal Das Kabra & Ors. - Respondents
Civil Appeal No. 9730-9731 of 2016 (Arising out of SLP (C) No. 20687-20688 of 2016)
Decided On : 27-09-2016

IMPORTANT POINTS
Right to elect is neither a fundamental right nor a common law right. It is plain and simple a statutory right.
Only a person who resides in a building constructed with previous sanction of the Board is entitled for registration as a voter.
Court is entitled and indeed bound to consider any other parts of the Act which throw light on the intention of the legislature while construing the terms of a provision.
Proviso to Rule 55 of Cantonment Electoral Rules, 2007 provides that no election petition is maintainable either for inclusion or exclusion in the electoral rolls. Therefore only remedy left is by way of writ petition.

Headnote:(a) Election laws – Right to elect – Neither a fundamental right nor a common law right – It is a statutory right. (Para 10)

       (1982) 1 SCC 691 – Relied upon

       (b) Cantonment Act, 2006 – Section 2(zt) – Resident – Covers only a person who maintains a house or a portion of the house which is at all times available for occupation by himself or for his family – As per section 2(d) building means a house – Section 234 prohibits construction of building without previous sanction of the Board – Thus only a person who resides in a building constructed with previous sanction of the Board is entitled for registration as a voter. (Para 12)

       (c) Interpretation of statute – Intention of the legislature – Court is entitled and indeed bound to consider any other parts of the Act which throw light on the intention of the legislature while construing the terms of a provision. (Para 12)

       (1976) 4 SCC 830 – Relied upon

       (d) Cantonment Act, 2006 – Section 28 r/w section 2(zt) – Eligibility to become voter of Cantonment Board – Section 28 employing the word ‘resided’ and not ‘inhabited’ – Persons ordinarily residing in illegally constructed houses – Not eligible to vote. (Para 14)

       (e) Interpretation of statute – Different words will have different meanings depending upon the context – Words ‘resident’ and ‘inhabitant’ though understood to be synonyms, carry different meanings for the purpose of the Act. (Para 15)

       (1966) 2 All ER 478; (2003) 4 SCC 305 – Relied upon

       (f) Cantonment Act, 2006 – Section 2(zt) and section 20, Representation of the People Act, 1951 – Resident in section 2(zt) is completely different from that of ordinarily resident in section 20 – Definition u/s 2(zt) is restrictive and peculiar to the Cantonment Act. (Para 17)

       (g) Cantonment Electoral Rules, 2007 – Rule 10(3) – Electoral Rolls – Names of electors to be arranged according to house numbers – Illegally constructed houses will not have house numbers – Residents of such houses cannot b a voter – Rule 10(3) is not in conflict, rather strictly in conformity with Section 28 of the Act. (Para 19)

       (h) Constitution of India – Article 226 – Maintainability – Proviso to Rule 55 of Cantonment Electoral Rules, 2007 providing that no election petition is maintainable either for inclusion or exclusion in the electoral rolls – Only remedy left is by way of writ petition – No fault. (Para 20)

       (i) Cantonment Electoral Rules, 2007 – Rule 10(3) – High Court recorded a finding that encroachers are not entitled for allotment of house numbers to illegal structures and such structures will be marked as unauthorized – High Court not authorising Cantonment Board to include the encroachers in the voters list. (Para 22)

       Facts of the case:

       The issue that arises for consideration in the above appeals is the right to vote of persons living in illegally constructed buildings in a Cantonment area.

       Respondent No. 1 in the appeals is a permanent resident of Panchamarhi, who contested election to the Cantonment Board, Panchamarhi in the year 2008 and was defeated by a margin of 292 votes. He filed Writ Petition seeking a direction to the authorities to prepare the electoral rolls of the Cantonment Board, Panchamarhi strictly in accordance with Rule 10(3) of the Cantonment Electoral Rules, 2007. The said Writ Petition was disposed of with a direction to the Cantonment Board, Panchamarhi to prepare the electoral rolls strictly in accordance with Rule 10(3) for the years 2010-2011.

       Thereafter, two separate voters lists were prepared by the Cantonment Board. One list contained the names of persons staying in houses with numbers and the second list contained names of persons living in unauthorised houses without numbers (encroachers).

       The preparation of two voters lists was challenged.

       The Division Bench held that an encroacher cannot be an elector.

       Finding of the Court:

       Encroachers residing in unauthorised buildings cannot be enrolled as voter of a Cantonment Board.

       Result: Appeals dismissed.