20220926 Tripura HC Judgment in Bru voter enrollment case.pdf

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HIGH COURT OF TRIPURA
AGARTALA
WP(C) 833/2022
Philip Apeto and 3 ors. ----Petitioner(s)
Versus
The Union of India and 6 ors. ----Respondent(s)
For Petitioner(s) : Mr. S. Lodh, Advocate
Ms. S. Banik, Advocate
For Respondent(s) : Mr. SS Dey, Advocate General
Mr. D. Bhattacharjee, GA
Mr. B. Majumder, Asstt. SG
Mr. A. Debbarma, Advocate
Mr. B. Debbarma, Advocate
Ms. A. Chakraborty, Advocate
Mr. S. Saha, Advocate
HON’BLE MR. JUSTICE ARINDAM LODH
Order
26/09/2022
Heard Mr. S. Lodh, learned counsel appearing for the petitioners. Also
heard Mr. SS Dey, learned Advocate General assisted by Ms. A.
Chakraborty , learned counsel appearing for State respondents, Mr. D.
Bhattacharjee, learned GA assisted by Mr. S. Saha, learned counsel
appearing for State Election Commission, Mr. B. Majumder, learned
Assistant SG appearing for Election Commission of India, Mr. A.
Debbarma, learned counsel and Mr. B. Debbarma, learned counsel appearing
for respondents-TTAADC.
The petitioners belong to Bru (Reang) community, at present, settled in
the State of Tripura and are residing within TTAADC area. It is not disputed
that consequent upon serious ethnic violence in Mizoram between the
Reangs and Mizo communities, the influx of Bru (Reang) families living in
Mizoram (particularly from Mamit, Lunglei and Kolasib Districts) occurred
in Kanchanpur Sub-Division under North Tripura District in two phases
(from October, 1997 till September, 1998 and second in November, 2009),

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total influx of Bru migrants involved 7,364 families consisting of 38,072
persons and they are settled in seven relief camps in North Tripura District.
On 16.01.2020, a Quadripartite Agreement was signed amongst the
Government of India, Government of Tripura, Government of Mizoram and
Representative of Bru Organizations for the permanent rehabilitation of Bru
migrants in Tripura. The Agreement gave a comprehensive package for each
family being rehabilitated and clear timelines for the said resettlement. As
per agreement, names of the Bru families will be included in the Records of
Residence (for short, “RoR”) of the respective Village Committee/
Panchayat after their resettlement. In the agreement, it is specifically stated
at sub-para 4.9 of para 4, which reads as under:
“4.9. Govt. of Tripura will take necessary steps to issue PRC and ST Certificates to
the resettled Brus and include their names in electoral rolls in a time bound
manner.”
It is the grievance of the petitioners that as per the Agreement, the State
Election Commission (for short, “SEC”) is under obligation to include their
names in the electoral rolls for any election conducted in the State of Tripura
and without including their names in the electoral rolls, no election can be
conducted. They have become the voters of this country as well as this State.
It is further stated that the petitioners have every right to exercise their
franchise like other citizens of the country.
It is their further grievance that the State Election Commission has
published draft voter list on 16.09.2022. They have gone through this draft
electoral roll, but, they found that their names have not been included in the
State electoral roll. Thereafter, they submitted several representations to the
State Election Commission as well as to the State respondents, but, to no
effect. However, they received a communication dated 05.09.2022 addressed
to the Secretary, State Election Commission, Tripura by Additional Chief
Electoral Officer, Tripura, wherefrom it revealed that enrolment of Bru
migrants are going on at the rehabilitation locations selected by the State

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government. As per the latest report received from the State Revenue
Department there are 15 designated locations identified for the settlement of
Bru migrants. Till date 5009 persons have been enrolled out of approximate
21703 eligible Bru migrants at different location. It is further revealed that
enrollment of Bru migrants are being done where house constructions are
completed and the families have been provided with the RoR which are
being done by concerned Block Development Officers. The Electoral
Registration Officers are ready to enroll the names of Bru migrants subject
to completion of house constructions and where issues like record of
residence are solved by the concerned Block Development Officers. It is
also observed in the said communication that the Electoral Registration
Officers are sending daily reports regarding the enrollment of Bru migrants
who are being enrolled on the basis of RoR and house constructions are
already completed. Lastly, the Secretary, State Election Commission was
requested to take up the matter with the State government for immediate
construction of house and issue RoR to the Bru migrants which may enable
the concerned Electoral Registration Officers to register the names of rest
Bru migrants as per guidelines framed by the Election Commission of India
regarding registration.
Mr. Lodh, learned counsel drawing the attention of this court to section
20 of Representation of the People Act, 1950, submits that a citizen’s name
cannot be excluded on the ground that his/her name has not been recorded in
the RoR or on the basis of fact whether he/she has constructed house or not.
Here, it will be useful to reproduce section 20 of the Representation of
the People Act, 1950 (for short “RP Act”), which reads as under:-
“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

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reason of his absence from that constituency in connection with his duties as such
member.]
(2) A person who is a patient in any establishment maintained wholly or mainly for the
reception and treatment of persons suffering from mental illness or mental
defectiveness, or who is detained in prison or other legal custody at any place, shall
not by reason thereof be deemed to be ordinarily resident therein.
[(3) Any person having a service qualification shall be deemed to be ordinarily resident
on any date in the constituency in which, but for his having such service qualification,
he would have been ordinarily resident on that date.]
(4) Any person holding any office in India declared by the President3 in consultation
with the Election Commission to be an office to which the provisions of this sub-
section apply, shall be deemed to be ordinarily resident on any date in the
constituency in which, but for the holding of any such office, he would have been
ordinarily resident on that date.
(5) The statement of any such person as is referred to in sub-section (3) or sub-section
(4) made in the prescribed form and verified in the prescribed manner, that [but for
his having the service qualification] or but for his holding any such office as is referred
to in sub-section (4) he would have been ordinarily resident in a specified place on any
date, shall, in the absence of evidence to the contrary, be 8[accepted as correct].
(6) The wife of any such person as is referred to in sub-section (3) or sub-section (4)
shall if she be ordinarily residing with such person be deemed to be ordinarily resident
on in the constituency specified by such person under sub-section (5).
(7) If in any case a question arises as to where a person is ordinarily resident at any
relevant time, the question shall be determined with reference to all the facts of the
case and to such rules as may be made in this behalf by the Central Government in
consultation with the Election Commission.]
(8) In sub-sections (3) and (5) “service qualification” means—
(a) being a member of the armed forces of the Union; or
(b) being a member of a force to which the provisions of the Army Act, 1950 (46 of
1950), have been made applicable whether with or without modifications; or
(c) being a member of an armed police force of a State, who is serving outside that
State; or
(d) being a person who is employed under the Government of India, in a post outside
India.”
Mr. Lodh, learned counsel has also pressed into service a decision of
Hon’ble Supreme Court in Union of India and ors. vs. Dudh Nath Prasad,
decided on 04.01.2020, wherein after considering the provision, it was
observed thus:-
Section 20 which is part of the law enacted for purposes of election to Parliament or
State Legislature contemplates many categories of persons including those who are in
service. It lays down as to when they would be treated to be "ordinarily residing" in a
particular constituency. Subsection (1) and Sub-section (1A) of Section 20 are couched
in a negative language. Sub- section (1) of Section 20 provides that if a person holds or
is in possession of a dwelling house in a particular constituency, he would not, merely
on that ground, be deemed to be "ordinarily resident" in that constituency. Sub-
section (1A) provides that temporary absence of a person from the place of his
"ordinary residence", would be ineffective and a person would not cease to be an
"ordinary resident" in that constituency merely for that reason. Thus, in determining
the question whether a person was ordinarily residing in a particular constituency, the

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factors mentioned in sub-section (1) and Sub-section (1A) of Section 20 alone would
not be determinative of the status and the question would have to be determined on
a consideration of all other relevant factors. This is also clear from a reading of sub-
section (7) of Section 20 which lays down that if a question arises as to whether a
person was ordinarily residing in any constituency at the relevant time, it would be
determined with reference to all the facts of the case as also with reference to the
Rules that may have been made in that behalf by the Central Govt. in consultation
with the Election Commissioner.”
In the light of the above, the subject matter of communication dated
05.09.2022 regarding inclusion of persons belonging to Bru (Reang)
community on the basis of RoR and completion of construction of houses
cannot be the basis for inclusion or exclusion of the persons belonging to
this community in the electoral roll. The State Election Commission is under
obligation to include the name of all the persons belonging to Bru (Reang)
community in the electoral rolls irrespective of their names in the RoR or
whether he/she has been permanently residing in a constructed house or not.
I reiterate that as per clause 4.9 reproduced here-in-above, under the
Quadripartite Agreement, the person belonging to Bru (Reang) community
has to be included in the electoral roll. The object of this clause in the
Agreement is to treat them as a citizen of the State of Tripura having given
their right to exercise their franchise. This object the government sought to
be achieved should not be thwarted by the State Election Commission in a
casual manner.
I have noticed that a Division Bench of this court after consideration of
all factual scenarios directed the State government as well as the State
Election Commission to conduct Village Committee election “preferably
within 1st
week of November, 2022”.
I have considered that the election process has not been started. The
process of preparing electoral roll is going on. In view of this, I direct the
State Election Commission to complete the process of preparing electoral
roll expeditiously and hold the election in accordance with law taking into
account the grievance of the petitioners and also keeping in mind the

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observation and direction as made in W.P(C) (PIL) no. 8 of 2022 [titled as
Rajesh Debbarma & anr. vs. The State of Tripura & ors].
With this observation and direction, the instant writ petition stands
disposed. Pending application(s), if any, also stands disposed.
JUDGE
Saikat