JUDGMENT Ashok Bhushan, J.
1. Heard counsel for the petitioner, learned counsel appearing for the respondent No. 5, Sri P.N. Rai learned standing counsel appearing for the respondent No. 4 and learned standing counsel.
2. By this writ petition the petitioner has prayed for quashing the order dated 22.9.2005 (Annexure-2 to the writ petition ) passed by the respondent No. 4. A writ of mandamus has also been prayed directing the respondent not to interfere in peaceful functioning of the petitioner as village Pradhan.
3. Brief facts necessary for deciding this writ petition are; Petitioner contested the election of Gram Pradhan of village Murdhawa, in which he was declared elected on 28th August, 2005. The State Election Commission passed an order dated 22.9.2005 holding that the petitioner Amrendra Singh could not contest the election of the office of Pradhan because he stood disqualified on account of his conviction dated 13.6.1997 passed in Session Trial No. 43 of 1993 under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and was sentenced to undergo three years' rigorous imprisonment and fine of Rs. 5000/-, The Election Commission countermanded the election of the petitioner in consequence of which steps for fresh election of the office of Pradhan have been initiated.
4. Sri Ashwani Misra, learned counsel for the petitioner in support of the writ petition raised following submissions :-
(1) The petitioner is not disqualified within the meaning of Section 5-A of the U.P. Pranchayat Raj Act, 1947. The conviction dated 13.6.1997 has still not started. The disqualification has not yet started running. The petitioner had not yet undergone the sentence in accordance with the conviction order dated 13.6.1997. The execution of conviction dated 13.6.1997 is suspended in appeal filed by the petitioner in this Court, which appeal is pending. In alternative the disqualification period shall be counted from 13.6.1997 and taking into period of conviction of three years and bar of disqualification of five years shall operate only upto 13.6.2005 whereas the petitioner has filed nomination on 6.8.2005 hence the disqualification, if any, came to an end.
(2) The disqualification of the petitioner on the strength of the conviction shall stand removed in accordance with rules namely the U.P. Panchayat Raj (Computation of Period of Five Years For Removal of Disqualification, Fixation of Period of Dues etc. and Settlement of Disputes of Disqualification) Rules, 1994.
(3) The question of disqualification of the petitioner to contest the election could have been raised only in election petition filed Under Section 12- C of the UP. Pranchayat Raj Act, 1947. The question of disqualification can also be decided in accordance with Section 6-A by the Prescribed Authority and it is only the Prescribed Authority who can decide the question of disqualification as per Section 6- A of the U.P. Pranchayat Raj Act, 1947.
(4) Article 243O of the Constitution of India bars the jurisdiction of the courts in the matter of election of Panchayat.
(5) After the petitioner having been declared elected as Pradhan of the Gaon Sabha the State Election Commission had no jurisdiction to cancel the election of the petitioner. Reliance has been placed by the counsel for the petitioner on three Division Bench judgements of this Court i.e. 1995 A.W.C. 1465 Smt. Ram Kantiv. District Magistrate and Ors. 2000(4) A.W.C. 2777 Shambhu Singhv. State Election Commission. U. P. and Ors. and the judgment dated 7.8.2000 passed in writ petition No. 32421 of 2000 Smt. Shyam Sakhi and Ors.
v. The State Election Commission and Ors.
5. Learned counsel appearing for the respondent No. 5 contended that the petitioner having been convicted by criminal court for a period of three years is disqualified as per Section 5-A (K) of the U.P. Pranchayat Raj Act, 1947 and he could not have been elected as Pradhan nor could function as Pradhan. The disqualification on the basis of conviction of the petitioner shall come into operation from the date of conviction and filing of appeal in this Court against the conviction order or stay of execution of sentence shall not revoke the disqualification. Reliance has been placed on the constitutional Bench judgment of the apex Court K. Prabhakaranv. P. Jayarajan. Petitioner being inherently disqualified from contesting the election even if the State Election Commission had no jurisdiction to set aside the election, this Court shall not exercise discretion in favour of the writ petitioner by quashing the order of the State Election Commission by which substantial justice has been done. This is not a fit case for exercise of discretion by this Court in its equitable jurisdiction.
6. Learned counsel appearing for the respondent No. 4 submitted that the State Election Commission had jurisdiction to pass the impugned order. Reliance has been placed by the learned on Article 243(k) of the Constitution of India.
7. I have considered the submissions raised by counsel for the parties and perused the record.
8. The first three submissions being inter related, are considered together. The submission of counsel for the petitioner is that the petitioner is not disqualified on the strength of his conviction dated 13.6.1997. A copy of the.conviction order dated 13.6.1997 has been filed by the petitioner as Annexure S.A.2 to the Supplementary Affidavit which is a judgment of the Special Judge, Sonbhadra in Session Trial No. 43 of 1993. By the judgment dated 13.6.1997 the petitioner has been convicted under Section 20 of the Narcotic Drugs and Psychotropic Substances Act and sentenced to three years rigorous imprisonment and a fine of Rs. 5000/-. In default of payment of fine the petitioner shall undergo further period of six months' rigorous imprisonment. Learned counsel for the petitioner has submitted that the fine in pursuance of the judgment after the conviction has already been deposited. He further submitted that against the judgment of conviction an appeal No. 1272 of 1997 has been filed by the petitioner which has been admitted on 28.7.1997 and bail has also been granted. A photostat copy of the order dated 28.7.1997 has been produced by the learned counsel for the petitioner which order reads as follows :-
"Admit: Let the appellant: Amrendra Singh Kurmi s/o late Tara Chandra Singh be released on bail in S.T. No. 43 of 1993 under Section 20 of N. D. P. S. Act on his furnishing two sureties and a personal bond in the like amount to the satisfaction of the Chief Judicial Magistrate, Sonbhadra.
28.7.97"
9. Section 5-A of the UP. Pranchayat Raj Act, 1947 provides for disqualification for being chosen as Pradhan or a member of the Gram Panchayat. The relevant portion of Section 5-A so far as is relevant in the present case is quoted below :-
"5-A. Disqualification for membership,____ A person shall be disqualified for being chosen as and for being (the Pradhan or ) a member of Gram Panchayat, if he_
(a)...
(b)...
(c)...
(d)...
(e)...
(f)...
(g)...
(h)...
(I)...
(j)...
(k) has been convicted of an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985;
(I)...
(m)...
(n)...
Provided that the period of disqualification under Clause (d), (f), (g), (h), (i), (j), (k), (I) or (m) shall be five years from such date as may be prescribed;
Provided further that the disqualification under Clause (e) shall cease upon payment of arrears or delivery of the record or property, as the case may be;
Provided also thai a disqualification under any of the classes referred to in the first proviso may, in the manner prescribed, be removed by the State Government."
10. According to Section 5-A disqualification is attached on a person who has been convicted of an offence under the N.D.P.S. Act, 1985. The petitioner has been convicted by the judgment dated 13.6.1997 under the above 1985 Act for a period of three years. The petitioner's submission is that the conviction has not started since the appeal against the said judgment has been admitted and the petitioner (appellant) has been granted bail. The constitutional Bench of the apex Court in the case of K. Prabhakaranv. P. Jayarajan (supra) has settled the controversy. The constitution Bench while interpreting Sub-section (3) of Section 8 of the Representation of People Act, held that the period of disqualification commences from the date of conviction whether or not the person has been taken into custody to undergo sentence of imprisonment. It has further been held that the person cannot escape the effect of disqualification merely because he was not taken into custody or taken on bail or was absconding. Following has been laid down by the apex Court in paragraph 47 :-
"47...Under Sub-section (3) of Section 8 of R.P.A. The period of disqualification commences from the date of such conviction.. The disqualification continues to operate for a further period of six years calculated from the date of his release from imprisonment. Thus, the disqualification commences from the date of conviction whether or not the person has been taken into custody to undergo the sentence of imprisonment. He cannot escape the effect of disqualification merely because he has not been taken into custody because he was on bail or was absconding. Once taken into custody he shall remain disqualified during the period of imprisonment. On the date of his release would commence the period of continued disqualification for a further period of six years. It is clear from a bare reading of Sub-section (3) of Section 8 of R.P.A. That the actual period of imprisonment is relevant. The provisions of Section 8 of the Representation of the People Act, 1951 have to be construed in harmony with the provisions of the Code of Criminal procedure, 1973 and in such manner as to give effect to the provisions contained in both the legislations."
11. Thus the mere fact that an appeal has been filed by the petitioner against his conviction which has been admitted and he has been released on bail, does not wipe out the disqualification which has been attached on the strength of conviction dated 13.6.1997. The submission of the petitioner that the conviction has not yet started since the petitioner is on bail has also to be repelled in view of the clear pronouncement of the apex Court as quoted above. The mere fact that the petitioner has not yet served his sentence he cannot be heard in saying that he is not disqualified.
12. The submission of the petitioner that the disqualification, if any, stand removed in view of the UP. Panchayat Raj Act so the Uttar Pradesh Panchayat Raj (Computation of Period of Five Years For Removal of Disqualification, Fixation of Period of Dues etc. and Settlement of Disputes of Disqualification ) Rules, 1994 is to be considered now. Rule 3 of the said Rules pertains to computation of period of five years which is quoted as below :-
"3. Computation of period of five years,_ The date from which the period of five years for removal disqualification under clauses (d), (f), (g),(h), (i), (j), (k), (I) or (m) of Section 5- A of the Act shall be computed will be as follows :-
(a) For Clause (d), from the date of dismissal;
(b) For Clause (f) from the date on which the insolvent is discharged;
(c) For clauses (g), (h), (i), (j), (k), (I) or (m);
(i) In case of sentence of imprisonment, from the date of expiry of the period of sentence;
(ii) In the case pf sentence of fine, from the date of payment or recovery thereof;
(iii)ln the case of sentence or both imprisonment and fine, from the date of expiry sentence, or payment or recovery of fine, whichever is later. "
13. The petitioner has been sentenced with both imprisonment and fine. The counsel for the petitioner has submitted that the fine has already been deposited hence the period of five years shall start running from the deposit of fine. The Rule 3 (c) (III) clearly mentions that the date from which the period of five years for removal of disqualification shall be computed is the date of expiry of sentence or payment of fine whichever is later. Thus the period shall begin on expiry of sentence. The petitioner has not yet undergone the sentence of imprisonment of three years nor the petitioner's conviction has yet been set aside. Thus according to Rule 3 of the Uttar Pradesh Panchayat Raj (Computation of Period of Five Years For Removal of Disqualification, Fixation of Period of Dues etc. and Settlement of Disputes of Disqualification ) Rules, 1994 the date from which period of five years for removal of disqualification has to be computed has not yet begun. Thus there is no question of removal of disqualification in the present case attached to the petitioner on the basis of conviction dated 13.6.1997. Thus it is held that the disqualification attached to the petitioner on the strength of conviction by virtue of Rule 5-A (k) of the Act has not yet been removed and the petitioner continues to be disqualified for being elected as Pradhan of the Gaon Sabha. At this juncture it is also relevant to note the submission of the petitioner on the strength Section 6-A of the U.P. Panchayat Raj Act. Section 6-A is extracted below :-
"6-A. Decision on question as to disqualification _If any question arises at to whether a person has become subject to any disqualification mentioned in Section 5-A or in Sub-section (1) of Section 6, the question shall be referred to the prescribed authority for his decision and his decision shall, subject to the result of any appeal as may be prescribed, be final."
14. The above provision require that the question whether a person has become subject to any disqualification if arises, the said question shall be referred to the prescribed authority for his decision. Section 6-A uses the phrase whether a person has become subject to any disqualification. The above words clearly indicate a stage anterior to election. The word "has become" denotes that such disqualification has been acquired anterior to election. In the present case the disqualification of the petitioner was at the time of filing of the nomination hence Section 6-A has no application in the facts of the present case. There cannot be any dispute to the contention of the petitioner's counsel that in an election petition filed under Section 12-C of the U.P. Panchayat Raj Act, the question of disqualification of the petitioner can be gone into.
15. From the above discussion it is thus clear that the petitioner was disqualified for being chosen as Gram Pradhan by virtue of he being convicted under the judgment dated 13.6.1997 which disqualification has not yet been removed according to the Uttar Pradesh Panchayat Raj (Computation of Period of Five Years For Removal of Disqualification, Fixation of Period of Dues etc. and Settlement of Disputes of Disqualification ) Rules, 1994.
16. Now comes the last two submissions of the counsel for the petitioner. The submission of the petitioner is that Article 243O of the Constitution of India bars challenge of election except in accordance with the manner provided by an election petition presented to such authority and in such manner as is provided by the State Legislature. The submission further is that the State Election Commission had no jurisdiction to pass the impugned order. This writ petition has been filed challenging the order of State Election Commission. The bar of Article 243O as is clear from the heading of the Section is " Bar to interference by courts in electoral matters". Thus the above provisions bars decision of courts in matters of election. This writ petition is challenging the order of the State Election Commission hence the bar of Article 243O cannot be pressed in for entertaining the writ petition. In the case of Smt. Ram Kantiv. District Magistrate and Ors; (supra) the question of bar of Article 243O of the Constitution of India was considered and it was held that the said bar does not come in entertaining the writ petition against the order passed by the State Election Commission. Following was held in paragraph 12 of the judgment :-
"12. It is true that Article 243O of the Constitution bars the jurisdiction of the court in the matter of election of Panchayats, but after the election process has come to an end and what is challenged by means of writ petition is not the election but the order of the State Election Commissioner, District Magistrate or the Election officer canceling the poll/declaration of the result and directing for repoll or recounting after a candidate has been duly declared elected, writ petition cannot be barred. In such a case, Article 243O of the Constitution is not attracted. In this connection reference may again be made to the case of Mohinder Singh Gill v. Chief Election Commissioner (supra ), wherein the bar created by Article 329(b) of the Constitution was confined to "litigative challenges of electoral steps taken by the Election Commission and its officer for carrying forward the process of election to its culmination in the formal declaration of the result". Similarly Article 243O of the Constitution bars the jurisdiction of this court so far as the election and the steps taken in connection therewith are concerned, but after the election is over, if any order is passed by the Election Commissioner or any Other Officer affecting the election, which has already been completed, writ petition against such an order under Article 226 of the Constitution can be entertained. In such a case no election is called in question."
17. Thus the bar of Article 243O does not come in entertaining this writ petition which has been filed against the order of State Election Commission.
18. The question next to be considered is as to whether the State Election Commission had any jurisdiction to set aside the election of a person who has already been declared elected as Pradhan. All the three cases relied by the counsel for the petitioner fully support the submission raised by the counsel for the petitioner that after the declaration of the result State Election Commission had no jurisdiction. All the three Division Bench's judgments namely Smt. Ram Kantiv. District Magistrate and Ors. (supra), Shambhu Singhv. State Election Commission. U. P. and Ors. (supra) and the case of Smt. Shyam Sakhi and Ors.v. The State Election Commission and Ors. (supra ) have held that after the declaration of the result the State Election Commission had no jurisdiction to interfere with the result of the election as declared.
19. Now comes to the crucial point in this case as to whether in view of what has been found above, the petitioner is entitled for relief by this Court in exercise of its discretionary jurisdiction. Section 5-A of the Act provides that a person shall be disqualified from being chosen as and for being the Pradhan or a member of Gram Panchayat if he is disqualified. Section mandates both i.e. that person shall be disqualified for being chosen as and for being the Pradhan and as held above, the petitioner is clearly disqualified for being chosen as Pradhan on mthe strength of conviction by criminal court and consequence of quashing the order of the State Election Commission would be to restore a person who is found to be disqualified on the office of Pradhan whereas a disqualified person can neither be chosen nor can be allowed to continue on the office of Pradhan. Although it has been found that the State Election Commission has no jurisdiction to interfere with the election but in view of the finding that the petitioner is disqualified I am not inclined to exercise discretion in favour of the writ petitioner by granting relief to the petitioner as prayed for. Election process for holding fresh election of the office of Pradhan has already begun as stated in the supplementary affidavit filed by the petitioner in the writ petition.
20. Taking into consideration the entire facts and circumstances of the case, the petitioner is not entitled for the reliefs as claimed in the writ petition. This Court, in the facts and circumstances of the present case, refuses to exercise its discretionary jurisdiction in favour of the petitioner. The writ petition is accordingly dismissed.