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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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