SUNIL KUMAR KORI Vs GOPAL DAS KABRA & ORS.ETC.
Bench: ANIL R. DAVE,L. NAGESWARA RAO
Case number: C.A. No.-009728-009729 / 2016
Diary number: 16162 / 2016
Advocates: RAJESH MAHALE Vs
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 9728-9729 of 2016 (Arising out of SLP (C) No.20677-20678 of 2016)
SUNIL KUMAR KORI & ANR. .... Appellant(s)
Versus
GOPAL DAS KABRA & ORS. ETC. …. Respondent(s)
With
CIVIL APPEAL No. 9730-9731 of 2016 (Arising out of SLP (C) No.20687-20688 of 2016)
CANTONMENT BOARD, PANCHAMARHI .... Appellant(s)
Versus
GOPAL DAS KABRA & ORS. …. Respondent(s)
J U D G M E N T
L. NAGESWARA RAO, J.
Leave granted.
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
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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 No. 7169 of
2008 in the High Court of Madhya Pradesh at Jabalpur,
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 (hereinafter referred to as ‘the Rules’).
The said Writ Petition was disposed of on 08.07.2010 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. The said judgment dated
08.07.2010 in Writ Petition No. 7169 of 2008 was confirmed
by a Division Bench in Writ Appeal No. 798 of 2010 by a
judgment dated 24.09.2010. Rejecting the submissions of
the Cantonment Board, the Division Bench held as follows:
“In our opinion, the appellants are under no
obligation in view of Rule 10 (3) of the Rules to
allot house numbers in respect of structures which
are unauthorized or illegal, substantial compliance
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of provisions of Rule 10 (3) is required to be made
and that can be done by marking the
encroachments as unauthorized construction and
mention them accordingly in the electoral roll for
the purpose of compliance of Rule 10 (3) of the
Rules.”
2. Review Petition No. 972 of 2012 was filed for
modification of the judgment dated 24.09.2010 in Writ
Appeal No. 798 of 2010 which was allowed on 02.08.2013
and the following words were deleted:
“And mention them accordingly in the electoral
roll for the purpose of compliance of Rule 10 (3)
of the Rules.”
A direction was given to the Cantonment Board to proceed
with the preparation of electoral rolls in accordance with the
provisions of the Act and the Rules.
3. 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. The First Respondent in the above
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appeals filed Writ Petition No. 20038 of 2013, questioning
the preparation of two voters lists. He also filed Contempt
Petition No. 2379 of 2013 for willful disobedience of the
directions given by the High Court for preparation of voters
list in Writ Petition No. 7169 of 2008. As the second voters
list containing the names of the encroachers was withdrawn
by the Board, Writ Petition No. 20038 of 2013 was disposed
of and Contempt Petition No. 2379 of 2013 was closed on
17.02.2014. A notification dated 05.03.2015 was issued by
the Government of India under Section 15 of the
Cantonment Act, 2006 (hereinafter referred to as ‘the Act’)
directing elections to be conducted to Panchamarhi
Cantonment Board on 17.05.2015.
4. A provisional voters list was prepared in which the
encroachers were also included and objections were invited.
Respondent No. 1 preferred objections to the provisional
voters list and requested the authorities to exclude the
names of the encroachers from the voters list. As his
objections were not considered and the voters list was
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issued, the First Respondent filed Writ Petition No. 93 of
2015 challenging the voters list. According to Respondent
No. 1, the voters list was prepared in willful disobedience of
the directions issued by the High Court in Writ Petition No.
7169 of 2008 and in violation of Rule 10 (3) of the Rules.
The Cantonment Board filed their reply contending that the
voters list was prepared in accordance with the provisions
of Rule 10 (3) of the Rules and the names of the
encroachers were included in the list along with the regular
residents. The Cantonment Board averred that no
restriction can be placed on the right to vote of encroachers.
The Cantonment Board contended that Section 28 of the
Act contemplates that a person who was not less than 18
years and who was residing in the Cantonment area for a
period of not less than six months was entitled to vote. By
a judgment dated 22.04.2015, a Single Judge of the High
Court of Madhya Pradesh allowed Writ Petition No. 93 of
2015 and directed the Respondents therein to prepare a
voters list as per Rule 10(3) of the Rules by removing the
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names of the encroachers and inhabitants of illegally
constructed houses. Writ Appeal No. 204 of 2015 was filed
by the Union of India and others challenging the judgment
dated 22.04.2015 in Writ Petition No. 93 of 2015. By an
interim order dated 24.04.2015, a Division Bench of the
High Court gave liberty to the Appellants therein to
continue with the election programme on the basis of the
published voters list, subject to the outcome of the appeal.
Election to the Panchamarhi Cantonment was conducted on
17.05.2016 and the results were declared.
5. By a judgment dated 21.07.2015, a Division Bench of
the High Court of Madhya Pradesh dismissed Writ Appeal
Nos. 204 of 2015 filed by the Union of India and others and
Writ Appeal No. 288 of 2015 filed by Kamal Kishore Dhoot.
The judgment of the learned Single Judge dated 22.04.2016
in Writ Appeal No. 93 of 2015 was upheld. The interim
relief that was granted on 24.04.2015 was vacated and the
Cantonment Board was directed to conduct elections on the
basis of a revised electoral roll to be prepared in accordance
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with the directions given by the High Court in which the
names of only qualified electors should be included. After a
detailed examination of the provisions of the Act and the
Rules, the Division Bench held that an encroacher cannot
be an elector. The Division Bench also held that the Writ
Petition which was filed challenging the voters list was
maintainable. The Cantonment Board filed SLP (C) No.
26491 of 2015 assailing the judgment dated 21.07.2015 in
Writ Appeal Nos. 204 of 2015 and 288 of 2015 which was
dismissed by an order dated 21.09.2015. Review Petition
No. 3470 of 2015 in SLP (C) No. 26491 of 2015 was
disposed of by this Court on 16.11.2015 directing the
Cantonment Board to approach the High Court by filing a
Review Petition. Liberty was given to the Cantonment
Board to approach this Court in case of dismissal of the
Review Petition by the High Court. Review Petition No. 950
of 2015 filed by the Cantonment Board was dismissed by
the High Court on 17.03.2016. The Review Petitioners
contended that the encroachers are permitted to vote in the
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elections to Legislative Assembly and Parliament and non
inclusion of their names in the voters list for elections to
Cantonment Board would result in an anomalous situation.
The High Court rejected the said submission by holding
that the right to vote of the encroachers in the elections to
the Cantonment Board was decided on an interpretation of
the provisions of the Cantonment Act and the Rules made
thereunder, whereas the elections to the Legislative
Assembly and Parliament are governed by the
Representation of the People Act, 1950. Another point
raised by the Petitioners in the Review Petition was that the
voters list for Ward No. 7 was not in dispute and the
election to Ward No. 7 ought not to have been set aside.
Taking note of the fact that the dispute pertained only to
Wards No. 1 to 6, the High Court directed the appropriate
authority to examine the matter and take a decision as to
whether fresh elections have to be conducted for Ward No. 7
also. The High Court rejected the submission that there was
a violation of principles of natural justice as all interested
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parties were not heard. The High Court held that as the
judgment under review was on interpretation of the Act and
Rules there was no necessity of impleading candidates who
contested in the elections. In any event, the High Court held
that the election was directed to be conducted subject to the
outcome of the appeal and as the appeal was allowed, the
election that was conducted was non est. The above
appeals are filed challenging the judgment dated
21.07.2015 in Writ Appeal No. 204 of 2015 and order dated
17.03.2016 in Review Petition No. 950 of 2015.
6. We have heard Mr. Vikas Singh, learned Senior
Counsel appearing for the Cantonment Board, Ms. Kiran
Suri, learned Senior Counsel appearing for the other
Appellants, Mr. P.S. Patwalia, learned Additional Solicitor
General appearing for Union of India and Mr. Harsh
Parashar, Advocate for Respondent No. 1 in both the
appeals. Mr. Vikas Singh submitted that Sections 27 and
28 of the Act provide for preparation of electoral rolls and
qualifications of the electors respectively. According to him,
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the nature of residence of a person in the Cantonment area
is not relevant. Even an encroacher is entitled for inclusion
in the electoral roll if he is not less than 18 years of age and
has resided in the Cantonment area for a period of not less
than six months, preceding the qualifying date. He
submitted that Section 28 (2) provides for disqualifications
and that placing a restriction on the right to vote of an
encroacher tantamounts to an additional disqualification.
He also submitted that the provisions of the Act pertaining
to elections have to be strictly construed and there is no
place for either equity or common law to be applied. He
also stated that Rule 10 which provides for preparation of
the electoral roll is procedural in nature and the
substantive rights conferred on a person by the statute
cannot be defeated by the Rule. Mr. Vikas Singh contended
that the Writ Petition challenging the voters list was not
maintainable. He relied upon Rule 54 which provides for an
election to be challenged only by way of an election petition.
He also submitted that the provisions pertaining to
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preparation of electoral rolls in the Cantonment Act, 2006
and the Representation of the People Act, 1950 are in pari
materia. He further submitted that the election process was
complete and the results were also declared by the time the
Writ Appeal was heard by the High Court, in which event
the High Court ought not to have set aside the election.
7. Ms. Kiran Suri, learned Senior Counsel appearing for
the other Appellants adopted the submissions made by
Mr. Vikas Singh. She further submitted that the Appellants
in Civil Appeal No. …… of 2016 arising out of SLP (C) No.
20677-20678 of 2016 were not parties to the Writ Petition
and the Writ Appeal. They filed SLP (CC) No. 17256-17257
of 2015 against the judgment of the Division Bench dated
24.04.2015 in Writ Appeal No. 204 of 2015. Pursuant to
the liberty given by this Court, they filed a Review Petition
before the High Court. She also stated that the Appellants
secured majority in the elections that were conducted on
17.05.2016 pursuant to interim order passed by the High
Court on 24.04.2015. She urges that the High Court
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judgment warrants interference in view of the fact that the
Appellants in Civil Appeal No. ………. of 2016 were already
declared elected with substantial majority. Mr. P.S.
Patwalia, learned Additional Solicitor General, supported
the Appellants and submitted that the judgment of the High
Court is required to be set aside as the elections to the
Cantonment Board were held and results declared.
8. Mr. Harsh Parashar, Advocate appearing for
Respondent No. 1 submitted that one of the objects of the
Cantonment Act is removal of encroachments. He
supported the judgment of the High Court and submitted
that Section 2 (zt) defines ‘residence’ which clearly shows
that only lawful residents are entitled for inclusion in the
voters list. He also submitted that the judgment of the High
Court in Writ Petition No. 7169 of 2008 became final and
the Cantonment Board prepared the voters list contrary to
Rule 10 (3) of the Rules and the directions issued by the
High Court in the said judgment. As the elections to the
Cantonment Board were conducted pursuant to an interim
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order which was made subject to the outcome of the Writ
Appeal, no benefit can be claimed by the Appellants from
such election. He also submitted that an encroacher on
Cantonment land and an inhabitant of an illegal structure
cannot claim any right to vote as the statute does not confer
such a right. He referred to Rule 55 of the Rules to submit
that an election petition cannot be filed for inclusion or non
inclusion in the electoral roll. According to him, the Writ
Petition challenging the electoral roll was maintainable. As
the directions given by the High Court were in conformity
with the provisions of the Cantonment Act and the Rules
made thereunder, interference with the judgment of the
High Court is unwarranted.
9. The endeavour of the First Respondent has been for
preparation of voters list for election to the Cantonment
Board in accordance with the provisions of the Act and the
Rules. He was successful in Writ Petition No. 7169 of 2008
as the High Court directed the preparation of electoral rolls
in accordance with Rule 10 (3). When two voters lists were
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prepared by the authorities, he again approached the High
Court by filing a Writ Petition as well as a Contempt for
willful disobedience of the directions issued by the High
Court in Writ Petition No. 7169 of 2008. The authorities
withdrew the separate voters list containing the names of
persons residing in houses which were illegally constructed
due to which the Writ Petition and the Contempt were
closed. Thereafter, the authorities prepared a consolidated
voters list in which persons residing in houses with
numbers and persons living in illegally constructed houses
also were included. The challenge to the said voters list has
culminated in the above appeals. The point that falls for
our consideration is the right to vote of encroachers and
other persons living in illegally constructed houses within a
Cantonment area.
10. This Court in Jyoti Basu & Ors v. Debi Ghosal & Ors reported
in (1982) 1 SCC 691 held that “A right to elect, fundamental
though it is to democracy, is, anomalously enough, neither a
fundamental right nor a common law right. It is pure and
simple, a statutory right.”
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11. As the right to elect is dealt with in Section 27 and 28
of the Act they are reproduced as under:
“27. Electoral rolls. - (1) The Board or, where a Board is not constituted in any place declared by
notification under sub-section (1) of section 3 to be
a cantonment, the Officer Commanding the
station, shall prepare and publish an electoral roll
showing the names of persons qualified to vote at
elections to the Board and such roll shall be
prepared, revised and finally published in such
manner and on such date in each year as the
Central Government may by rule prescribe.
(2) Every person whose name appears in the
final electoral roll shall, so long as the roll
remains in force, be entitled to vote at an election
to the Board, and no other person shall be so
entitled.
(3) When a cantonment has been divided into
Wards, the electoral roll shall be divided into
separate lists for each Ward.
(4) If a new electoral roll is not published in
any year on the date prescribed, the Central
Government may direct that the old electoral roll
shall continue in operation until the new roll is
published.
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28. Qualification of electors. - (1) Every person who, on such date as may be fixed by the Central
Government in this behalf by notification in the
Official Gazette hereinafter in this section referred
to as "the qualifying date", is not less than
eighteen years of age and who has resided in the
cantonment for a period of not less than six
months immediately preceding the qualifying date
shall, if not otherwise disqualified, be entitled to
be enrolled as an elector.
Explanation.-When any place is declared a
cantonment for the first time, or when any local
area is first included in a cantonment, residence
in the place or area comprising the 15 cantonment
on the aforesaid date shall be deemed to be
residence in the cantonment for the purposes of
this sub-section.
(2) A person notwithstanding that he is
otherwise qualified, shall not be entitled to be
enrolled as an elector if he on the qualifying date-
(i) is not a citizen of India, or
(ii) has been adjudged by a competent court
to be of unsound mind, or
(iii) is an undischarged insolvent, or
(iv) has been sentenced by a Criminal Court
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to imprisonment for a term exceeding two
years for an offence which is declared by
the Central Government to be such as to
unfit him to become an elector or has been
sentenced by a Criminal Court for any
offence under Chapter IXA of the Indian
Penal Code (45 of 1860):
Provided that any disqualification incurred
by a person under clause (iv) shall terminate
on the lapse of three years from the expiry of
the sentence or order.
(3) If any person having been enrolled as an
elector in any electoral roll subsequently
becomes subject to any of the
disqualifications referred to in sub-section
(2), his name shall be removed from the
electoral roll unless, in the case referred to in
clause (iv), the disqualification is removed by
the Central Government.”
12. Section 27 of the Act prescribes the manner of
preparation, revision and publication of electoral rolls. It is
clear from Section 28 that a person who is not less than 18
years of age and who has resided in a Cantonment area for
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a period of not less than six months immediately preceding
the qualifying date shall be entitled to be enrolled as an
elector. The word ‘resided’ is not defined in the Act, but its
grammatical variation ‘resident’ is defined in Section 2 (zt)
which is as follows:
“(zt) "resident", in relation to a cantonment, means a person who maintains therein a house or
a portion of a house which is at all times available
for occupation by himself or his family even though
he may himself reside elsewhere, provided that he
has not abandoned all intention of again occupying
such house either by himself or his family;”
The other relevant definition is in Section 2 (zc) which is as
follows:
(zc) "inhabitant", in relation to a cantonment, or local area means any person ordinarily residing or
carrying on business or owning or occupying
immovable property therein, or declared as such
by the Chief Executive Officer and in case of a
dispute, as decided by the District Magistrate;
A perusal of the definition of ‘resident’ would show that it
covers only a person who maintains a house or a portion of
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the house which is at all times available for occupation by
himself or for his family, even if he is residing elsewhere.
The point to be considered is whether the house to be
maintained by a person should be a house built after taking
previous sanction of the Board. As per Section 2 (d), a
building means a house. Section 234 of the Act provides
that no person shall erect a building on any land in a
Cantonment without the previous sanction of the Board.
According to Section 247 illegal erection of a building is an
offence, punishable with a fine which may extend to fifty
thousand rupees. A building erected illegally is liable to be
demolished as per a direction that may be issued under
Section 248 of the Act. As per the definition of the word
‘resident’ a house which is to be maintained by a person at
all times for his or his family’s occupation is a building
constructed after previous sanction of the Board. Only a
person who resides in such a building is entitled for
registration as a voter. We have considered the other
provisions of the Act as it is settled law that the Court is
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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. See Municipal
Corporation of City of Hubli v. Subha Rao Hanumatharao
Prayag reported in (1976) 4 SCC 830 at paragraph 9.
13. The learned Senior Counsel for the Cantonment Board
submitted that the provisions pertaining to election in the
Act have to be strictly construed with which proposition we
agree. In Banwari Dass v. Sumer Chand reported in
(1974) 4 SCC 817 at paragraphs 20 and 21 it was held by
this Court that statutory provisions of election law are to be
strictly construed and its requirements strictly observed. It
was further submitted by the learned Senior Counsel for the
Appellants that the principles of equity and common law are
strangers to election law. That an Election Petition is not
an action at common law, nor in equity is no more res
integra. The said principle is applicable to adjudication of
election disputes and not for interpretation of election law.
Construing Section 28 on the basis of the above well
accepted principles of statutory construction, we are of the
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opinion that the word ‘resident’ should receive a narrow
construction in comparison to its synonym ‘inhabitant’. We
are of the opinion that a person should be a resident of a
legally constructed house for being entitled to be enrolled as
an elector.
14. The word ‘inhabitant’ as defined in Section 2 (zc) of the
Act is very wide, covering persons who ordinarily reside or
carry on business or occupy immovable property. Whereas
the word ‘resident’ means a person who maintains a house
at all times which is available for occupation. As discussed
above, the house that he maintains has to be one which
was constructed after obtaining a sanction in accordance
with the provisions of the Act. There is no restriction in the
width of the word ‘inhabitant’ and even persons staying in
houses which are illegally constructed will fall within its
purview. The fact that the word ‘resided’ and not ‘inhabited’
is employed in Section 28 for the purpose of eligibility of
persons to become voters makes it clear that persons who
were ordinarily residing and carrying on business for
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temporary periods in illegally constructed houses are not
eligible to vote. All persons living in the Cantonment area
are covered by the expression ‘inhabitant’ and their rights
are dealt in the Act. For example, Section 70 provides for
objections to be filed by an inhabitant to the preliminary
proposals for imposition of a tax under Section 66.
Likewise, Section 157 of the Act contemplates safety
measures in case of outbreak of epidemic diseases covering
inhabitants. Likewise, Section 180 deals with free patients
and Section 197 referring to supply of water mention that
persons to be benefited would be inhabitants.
15. It is well settled principle of interpretation that different
words will have different meanings, depending upon the
context. Though the words ‘resident’ and ‘inhabitant’ are
understood to be synonyms, for the purpose of the Act they
carry different meanings. In Gibson v. Skibs A/S Marina
and Orkla Grobe A/B and Smith Coggins, Ltd. reported
in (1966) 2 All ER 478 it was held that “[p]rima facie one
would expect that when two different words, although
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practically synonymous in ordinary use, are employed in
different parts of the same regulation dealing with the same
kind of topic, they are intended to have some different
meaning.” This Court held in Kailash Nath Agarwal v.
Pradeshiya Industrial & Investment Corporation of UP
Ltd. reported in (2003) 4 SCC 305 at paragraph 20 that
“[t]he general rule is that when two different words are used
by the same statute, prima facie one has to construe these
different words as carrying different meanings.”
16. Mr. Vikas Singh, learned Senior Counsel submitted
that the provisions of the Representation of the People Act,
1950, the Registration of Electors Rules, 1960 and the
provisions contained in Section 28 of the Act are similar. A
person who ordinarily resides in a constituency is entitled
to be registered as a voter in accordance with Section 19 of
the Representation of the People Act, 1950. The phrase
‘ordinarily resident’ is defined in Section 20 of the
Representation of the People Act, 1950 which reads as
follows:
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20. Meaning of "ordinarily resident".- (1) A person shall not be deemed to be ordinarily resident in a
constituency on the ground only that he owns, or is in
possession of, a dwelling house therein.
(1A) A person absenting himself temporarily
from his place of ordinary residence shall not by
reason thereof cease to be ordinarily resident therein.
(1B) A member of Parliament or of the
Legislature of a State shall not during the term of his
office cease to be ordinarily resident in the
constituency in the electoral roll of which he is
registered as an elector at the time of his election as
such member, by reason of his absence from that
constituency in connection with his duties as such
member.
In Election Commission of India and Anr. v. Dr.
Manmohan Singh and Ors. reported in (2000) 1 SCC 591
this Court approved the findings of the High Court on the
interpretation of word ‘ordinarily resident’ which read as
under:
“87. Accordingly, this writ application is disposed of
holding as follows:
(i) That the ‘ordinarily resident’ in a
constituency as mentioned in the Representation of
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the People Act, 1950 shall mean a habitual resident
of that place or a resident as a matter of fact in
regular, normal or usual course. It means an usual
and normal resident of that place. The residence
must be permanent in character and not temporary
or casual. It must be as above for a considerable
time, he must have the intention to dwell
permanently. He must have a settled abode at that
place for a considerable length of time for which a
reasonable man will accept him as the resident of
that State.
(ii) A person holding a declared office as
provided by the Act of 1950 can file a declaration in
Form 6 and such a declaration shall have to be
accepted as correct and the burden does not lie on
such a person to produce evidence 14 to the
contrary; that burden lies on the authority who
disputes it, regarding holding of declared office.
(iii) Apart from inquiry regarding holding a
declared office, such a declaration made by the
holder of declared office cannot be subjected to any
inquiry as the statute by creating a deeming
provision/ fiction has given that privilege/right to
the holder of a declared office to make declaration
regarding ‘ordinarily residence’ of a place that must
be deemed to be final.
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(iv) The orders dated 1-3-1994 (Annexure J),
notice dated 2-2-1994 and 16-2-1994 (Annexures D
and F) and the order dated 3-3-1994 (Annexure I)
shall stand quashed being without authority of law
and having been issued without jurisdiction, and in
violation of laws as indicated above.”
17. The scope of word ‘resident’ as defined in the
Cantonment Act, 2006 is completely different from that of
‘ordinarily resident’ as defined in the Representation of the
People Act, 1950. The restrictive definition of a ‘resident’ in
the Act is peculiar to the Cantonments whereas the
definition of ‘ordinarily resident’ is very wide. Even if a
person is residing in an unauthorised structure he will be
entitled to be included in the electoral rolls under the
Representation of the People Act.
18. Having considered the ambit of word ‘resident’ as
defined by the Act we proceed to deal with the Rules which
provide for the manner of preparation of the electoral rolls.
The thrust of the Writ Petitions filed by the First
Respondent is that the electoral rolls have to be prepared
strictly in accordance with Rule 10 (3) of the Rules. For
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better appreciation of the point it would be necessary to
reproduce the relevant Rules which are as follows:
“ CHAPTER II ELECTORAL ROLLS
8. Registration. No person shall be entitled to be registered in the electoral roll for more than one
Ward and no person shall be so registered for
any Ward more than once.
9. Qualification of elector. Every person who is eligible for enrolment as an elector under
sub-section (1) of section 28 of the Act, and is not
otherwise disqualified under sub-section (2) of the
said section shall be enrolled as an elector.
10. Preparation of electoral rolls . (1) The Board or where a Board is not constituted,
the Officer Commanding the Station, shall prepare
on Ist July of each year, in English and in the
language commonly used in the District in which
Cantonment is located, an electoral roll in
Form I.
(2) The electoral roll shall be divided into separate
parts for each Ward.
(3) The names of electors in each part of the roll
shall be arranged according to house numbers.
Explanation. - For the purposes of this sub-rule,
any building or unit line used for the purpose of
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lodging troops shall be deemed to be a house.
(4) The names of electors in each part of the
electoral roll shall be numbered as far as
practicable, consecutively with a separate series
of numbers beginning with number one.”
19. It is evident from a plain reading of Rule 10 (3) that the
names of electors shall be arranged according to house
numbers. It is clear that persons who are living in illegally
constructed houses which are not assigned any number will
not be entitled for inclusion in the electoral roll to be
prepared in accordance with Rule 10 (3). Rule 10 (3) is not
in conflict with Section 28 of the Act. On the other hand,
Rule 10 (3) is strictly in conformity with Section 28 making
only persons living in houses with numbers eligible to vote.
The submission on behalf of the Appellant that Rule 10 (3)
defeats the substantive rights conferred by Section 28 is not
correct and is rejected.
20. We proceed to deal with the maintainability of the Writ
Petition. The contention on behalf of the Appellant is that
there is a procedure that is prescribed for claims and
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objections to the voters list in Chapter III of the Rules and
that the only remedy open to a person to challenge the
voters list is by way of filing an election petition under
Rule 54. We are unable to agree with the said submission
as the proviso to Rule 55 provides that no election petition
is maintainable either for inclusion or exclusion in the
electoral rolls.
21. Ms. Kiran Suri, learned Senior Counsel appearing for
the other Appellants submitted that the election was
conducted on 17.05.2016 pursuant to an interim order and
the Appellants in Civil Appeal No. …………. of 2016 were
elected with a substantive majority. She argued that the
High Court should have allowed the Writ Appeal taking note
of the above facts. The High Court held that no rights
accrue to successful candidates in the election conducted
pursuant to an interim order, after the election was set
aside. The High Court also held that it was made clear in
the interim order that the election would be subject to the
outcome of the Writ Appeal. We agree with the said
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conclusion of the High Court and approve the directions
that were issued by it for preparation of fresh voters list
strictly in accordance with Rule 10 (3) of the Rules.
22. The judgment dated 08.07.2010 in Writ Petition No.
7169 of 2008 was confirmed by a Division Bench and it
became final. A direction was issued in the said Writ
Petition for preparation of a voters list strictly in accordance
with Rule 10 (3). The said direction was confirmed by a
Division Bench in an appeal filed by the Cantonment Board.
It was held that the Board had no obligation to allot house
numbers to unauthorized or illegal structures and
substantial compliance of Rule 10 (3) can be done by
marking the encroachments as unauthorized structures.
Initially the Division Bench also directed inclusion of
persons living in such structures in the electoral roll for the
purpose of compliance of Rule 10 (3) after mentioning that
they are encroachers. In the review filed for modification,
the Division Bench deleted the said direction of inclusion of
encroachers in the voters list after mentioning that they are
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encroachers. There is no substance in the contention of the
Cantonment Board that direction of the Division Bench
after modification enables them to include encroachers in
the voters list. The finding recorded by the Division Bench
is that encroachers are not entitled for allotment of house
numbers to illegal structures and such structures will be
marked as unauthorized. The Cantonment Board has not
been authorized to include the encroachers in the voters
list. We are of the opinion that the clear directions in Writ
Petition No. 7169 of 2008 would disentitle the persons living
in illegally constructed houses from being included in the
voters list.
23. Before parting with the case it is our duty to deal with
the very disturbing fact of encroachments on defence land.
During the course of hearing, it was brought to our notice
that there were several encroachments and a large number
of illegally constructed houses in the Cantonment area. We
were also informed that there is a Public Interest Litigation
pending in the High Court of Madhya Pradesh and Jabalpur
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and pursuant to the interim directions in the said Writ
Petitions a substantial number of illegally constructed
houses were demolished. The Cantonments Act, 2006
re-enacted the existing Act of 1924 after taking into
consideration the recommendations made by the Standing
Committee of Parliament on Defence. One of the
recommendations made by the Standing Committee of
Parliament is to tackle encroachments on defence lands
situated all over the country. In paragraph 12 above, we
have referred to Section 247 and 248 of the Act which
provide for demolition of illegally erected buildings and
penalties for making illegal construction. Section 34 (1) (e)
of the Act also provides for removal of a member of the
Board who aids or abets encroachment and the illegal
constructions on the defence land. We are of the
considered view that avowed legislative policy and the
provisions of the Act relating to encroachments should be
strictly implemented. Prompt action has to be taken by the
concerned authorities for removal of the illegally
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constructed buildings in the Cantonment area. The
Cantonment Boards should be vigilant and ensure that no
further encroachments are made on defence land.
24. For the aforesaid reasons, the Civil Appeals are
dismissed.
.…............................J. [ANIL R. DAVE]
................................J. [L. NAGESWARA RAO]
New Delhi, September 27, 2016.
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