Cantonment; Sunil Kumar Kori Vs. Gopal Das Kabra [Supreme Court of India, 27-09-2016]

Cantonment Act, 2006 – S. 28 – Cantonment Electoral Rules, 2007 – R. 10 (3) – Preparation of Electoral Rolls – Qualification of Electors – Only persons living in houses with numbers eligible to vote – the names of electors shall be arranged according to house numbers. Persons who are living in illegally constructed houses which are not assigned any number will not be entitled for inclusion in the electoral roll.

Cantonment Act, 2006 – Ss. 247 & 248 – Encroachments on defence land situated all over the country – Demolition of illegally erected buildings and penalties for making illegal construction – Prompt action has to be taken by the concerned authorities for removal of the illegally constructed buildings in the Cantonment area. The Cantonment Boards should be vigilant and ensure that no further encroachments are made on defence land. 

Cantonment Electoral Rules, 2007 – R. 10 (3) – Right to vote of persons living in illegally constructed buildings in a Cantonment area – Held, A person should be a resident of a legally constructed house for being entitled to be enrolled as an elector. 

Words & Phrases – Cantonment Act, 2006 – S. 2 (zc) & (zt) – “inhabitant” – “resident” – The word ‘resident’ should receive a narrow construction in comparison to its synonym ‘inhabitant’. 

Words & Phrases – ‘resident’ – 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. 


IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

[ANIL R. DAVE] AND [L. NAGESWARA RAO] JJ.

September 27, 2016

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 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 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 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 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 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 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 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 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, 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 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 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 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 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