Heard learned counsel for the parties.
The petitioner has approached this Court by means of the present writ petition for a direction to the opposite parties, specially opposite party no.3 to consider and pass appropriate orders removing opposite party no.5 from the office of Pradhanship of Village Panchayat-Itiyathok, Block-Itiyathok, District-Gonda. Further a prayer has been made for a direction to the opposite parties restraining continuance of opposite party no.5 and seizing her financial powers as Pradhan of village Panchayat-Itiyathok, Block-Itiyathok, District-Gonda.
Submission of learned counsel for the petitioner is that the election was held for the post of Pradhan in the year 2015. Before entering into election fray, the candidates had to declare about their antecedents. Opposite party no.5-Smt. Meera Dubey, while filling up the nomination paper and filing affidavit in support thereof, in Column No. 4(A and B) which relates to movable and immovable properties, made false declarations and defrauded the authorities concealing the material facts. Thus,by playing fraud and concealing material facts, opposite party no.5 succeeded in election and has been elected as Pradhan and is continuing as such. The petitioner made a complaint before the District Magistrate, Gonda on 11.08.2016 and the District Magistrate, Gonda directed to the opposite party no.4 to enquire into the matter but no further action has been taken by the opposite party no.4. It has further been submitted that the husband of the petitioner namely, Sri Dinesh Kumar Shukla had also made a complaint on 12.07.2016 and the Enquiry Officer (Naib Tehsildar, Khargoopur, Gonda) has also not conducted any enquiry. Further submission of learned counsel for the petitioner is that a complaint under Rule 3 of the U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997(hereinafter referred to as Rules of 1997) was moved on 20.10.2016 by the petitioner which was required to be enquired into and since the election of the opposite party no.5 is in contravention of Section 95(1)(g) of the U.P. Panchayat Raj Act, 1947 it is liable to the quashed and her financial powers are liable to be seized.
Further submission of learned counsel for the petitioner is that on the complaint made by the petitioner, no action has been taken, therefore, the petitioner is constrained to approach this Court by means of filing the present writ petition. In support of his submission, counsel for the petitioner has relied on the Full Bench decision of this Court in the case of Tara Prasad Misra versus State of U.P. and others; (1990) 2 UPLBEC 905, K.Venkatachalam versus A.Swamickan and another; (1999) 4 SCC 526, Lok Prahri versus Union of India and others AIR (2018) SC 1041, Kashi Ram versus Deputy Director of Consolidation, Haridwar/Additional Collector, Haridwar; (2006) (100) RD 764, Sahab Singh versus State of U.P.; (2018)139 RD 59 and a Full Bench decision of High Court of Punjab and Haryana in the case of Lal Chand versus State of Haryana;(1998) Law suit (P & H) 390.
Learned Standing Counsel appearing for the State vehemently opposed the submissions of the learned counsel for the petitioner. He submitted that the opposite party no. 5, in accordance with the directions issued by the Hon'ble Apex Court as well as by the Election Commission, had recorded her entries in each of the column of the nomination paper and affidavit in support thereof in Column No. 4 ( A and B) before the election officer, which has also been allowed by the then Panchayat Election Officer. It has further been submitted that the petitioner was first runner up in the Panchayat Elections from Gram Panchayat-Itiyathok and the petitioner has a remedy of filing Election Petition under Section 12(C) of the U.P. Panchayat Raj Act 1947 and after the elections are held, the writ petition is not maintainable. It has further been contended that the Rules of 1997 are not applicable in the instant case because the Rules of 1997 are related with the enquires for removal of the pradhans, up-Pradhans and Members and are not applicable on the facts and circumstances of the present case.
Learned Standing Counsel has relied on the judgment rendered in the case of Dinesh Pratap Singh versus State of U.P. and others; (2010) (28) LCD 679 and Jitendra Prasad Yadav @ Jitendra versus State of U.P. and others; (2011)(29) LCD 1995.
On the basis of above submissions, learned Standing Counsel submitted that after the elections are over, the writ petition is not maintainable and the petitioner has a remedy of filing election petition and in this regard there is a specific bar under Article 243-O of the Constitution of India.
Learned Counsel for the Election Commission of India submitted that the election for the post of Pradhan in question was conducted in accordance with law and Rules framed thereunder. It has further been submitted that at the time of filing of nomination and the scrutiny of such nomination, no objections were raised against the nomination of the opposite party no.5. Having received no objection from the respondent no. 3 during scrutiny of the nomination papers, the election symbol was alloted to the candidates including the opposite party no.5. Thereafter after holding the election, the result was declared, in which the opposite party no.5 was declared elected as Pradhan. It has further been submitted that once the result has been declared, the State Election Commissioner, District Magistrate and the Election Officer ceases to have any jurisdiction with regards to the election dispute. Election disputes are to be exclusively dealt by the election tribunal. Article 243-O puts a blanket bar on interference by courts in electoral matter.
Accordingly, it has been submitted that the petitioner has a remedy of filing election petition under Section 12(C) of the Act 1947. It has further been contended that the election of the petitioner does not fall under any of the dis-qualfication laid down in Section 95 (1)(g) of the Act. Moreover, the dis-qualification as laid down in sub-clause (a) of Section 5A of the Act 1947 says that filing a wrong affidavit or non-disclosure of the movable and immovable property would amount to rejection of nomination and now the elections are over. Hence this writ petition is not maintainable. It is mis-conceived and liable to be dismissed.
Learned counsel for the Election Commission has relied on the case of Mohinder Singh Gill versus Chief Election Commissioner, New Delhi; AIR 1978 SC 851/(1978) 1 SCC 405.
I have considered the submission of the parties and perused the records.
The petitioner preferred a complaint under Rule 3 of Sub-Rule (2),(3) and (4) of the Rules of 1997 read with Section 95 (1) (g) on the ground that opposite party no.5 has submitted a false affidavit at the time of filing nomination.
Rule 95(1)(g) of the Act 1947 is extracted below:-
95(1)(g) "Remove a Pradhan or member of a Gram Panchayat or a Joint Committee or Bhumi Prabhandhak Samiti or a Panch, Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat if he-
(i) absents himself without sufficient cause for more than three consecutive meetings or sittings,
(ii) refuses to Act or becomes incapable of acting for any reason whatsoever or if he is accused of or charged for an offence involving moral turpitude,
(iii) has abused his position as such or has persistently failed to perform the duties imposed by the Act or rules made thereunder or his continuance as such is not desirable in public interest or, (iii-a) has taken the benefit of reservation under sub section (2) of Section 11-A or sub-section 5 of Section 12,as the case may be, on the basis of a false declaration subscribed by him stating that he is a member of the Scheduled Castes, the Scheduled Tribes or the Backward classes, as the case may be,
(iv) Being a Sahayak Sarpanch or a Sarpanch of the Nyaya Panchayat takes active part in politics or,
(v) suffers from any of the disqualifications mentioned in clauses (a) to (m) of Section 5-A"
The ground of the petitioner for removal of opposite party no.5 is not covered under any of the ground under Section 95(1)(g). So far as the Rule 3 and 4 of the Rules of 1997 are concerned they are in respect of the Preliminary Enquiry against a Pradhan, Up-Pradhan and members in regard to the irregularities committed by them during their tenure. In the present case the petitioner has made a complaint for removal on the ground that the opposite party no.5 had submitted false information in annexure to affidavit at the time of election. Accordingly, the said Rules are not applicable on the facts of the present case. So far as the other grounds of the dis- qualification under Rule 5 (a) are concerned the provisions made thereunder are also not attracted in the present case. There is a specific bar in Article 243-O(b) of the Constitution of India which is extracted hereunder:
243-O"Bar to intereference by courts in electoral matters.-Notwithstanding anything in this Constitution-
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 243K, shall not be called in question in any court;
(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State"
Section 12(c) of the U.P. Panchayat Raj Act,1947 provides for application for questioning the elections of a person as Pradhan etc. The relevant portion of Section 12(c) of the Rules of 1977 is reproduced as under:
12-C Application for questioning the elections-(1) The election of a person as Pradhan or as member of a Gram Panchayat including the election of a person appointed as the Panch of a Nyaya Panchayat under Section 43 shall not be called in question except by an application presented to such authority within such time and in such manner as may be prescribed on the grounds that-
(a) the election has not been a free election by reason that the corrupt practice of bribery or undue influence has extensively prevailed at the election, or
(b) that the result of the election has been materially effected-
Submission of learned counsel for the petitioner that since the District Magistrate, on the complaint of the petitioner, had directed to the D.P.R.O. to conduct the enquiry and submit the report,he could not have dis-obeyed the order of the District Magistrate. The submission of learned counsel for the petitioner is mis-conceived because if the direction would have been issued in exercise of some power provided to him then it was required to be complied necessarily and the Court can examine the effect of non compliance and pass suitable order.
It has been held in the case of K.Venkatachalam versus A.Swamickan and another; (1999) 4 SCC 526 that powers under Article 226 of the Constitution of India can be exercised when there is any act which is against the provision of law or violative of constitutional provisions and when recourse cannot be had to the provisions of the Act for the appropriate relief.
In the case of Lok Prahri versus Union of India and others; AIR (2018) SC 1041, the Hon'ble Apex Court has held that non-disclosure of assets and sources of income of the candidates and their associates would constitute a corrupt practice falling under ''undue influence' as defined under Section 123(2) of Representation of Peoples Act 1951.
In the case of Kashi Ram versus Deputy Director of Consolidation, Haridwar/Additional Collector, Haridwar; (2006) (100) RD 764, it has been held that an election to any Panchayat cannot be questioned except through an election petition presented to such authority and in the manner provided under the law made by said Legislature. If any voter or a candidate or any such person wants to challenge the election of Pradhan, he is required to file an election petition under the provisions of U.P. Panchayat Raj Act,1947 and Rules framed thereunder. Further it has been held that grounds of mis-conduct for removal from the post of Pradhan , Up-Pradhan or Member under Section 95(1)(g) of the aforesaid Act, cannot be said to be hit by Clause (b) of Article 243-O of the Constitution. However, the said case is not applicable in the present case because in the said cases the power was exercised by the District Magistrate under the provisions of Section 95(1)(g).
In a Full Bench decision of this Court in the case of Tara Prasad Misra versus State of U.P. and others; (1990) 2 UPLBEC 905, the Full Bench has held that for issuing a mandamus, a person must establish legal right only then mandamus can be issued. Further it has been held that a mandamus can be issued in the matters of public duty which have not only been imposed by statute but by common law, custom and even contract. Lastly while answering question the Full Bench held that a mandamus can be issued to a private individual as public officer performing public duty and subordinate to some higher authority for enforcing the request of superior officer which is in the nature of direction.
In the case of Sahab Singh versus State of U.P.; (2018)139 RD 59, it has been held that the enquiry can be held under Rule 3 and 4 of the Rules of 1997 if the District Magistrate is of the view that a preliminary enquiry is required under Section 95(1)(g) and there is a justification for directing a preliminary enquiry.
In the case of Lal Chand versus State of Haryana;1998 Law Suit (P & H) 390, a Full Bench of Punjab and Haryana High Court has held that the election of the Panchayat/Muncipality can be challenged directly before the High Court under Articles 226/227 of the Constitution of India otherwise the Articles would be against the basic structure of the Constitution (i.e. judicial review by the High Court/ Supreme Court). However, keeping in view the facts and circumstances of the case, the High Court may relegate the petitioner to the remedy available before the Election Tribunal.
In the case of Jitendra Prasad Yadav @ Jitendra versus State of U.P. and others; (2011)(29) LCD 1995, a Division Bench of this Court has held that after the elections are over, the same can be challenged in an election petition under Section 12(c) of the Act in view of the specific bar under Article 243-O of the Constitution of India.
Similar view has been taken by a Division Bench of this Court in the case of Dinesh Pratap Singh versus State of U.P. and others; (2010) (28) LCD 679 ,the paragraph 20 of which, on reproduction, reads as under:
"20. In this regard, it is sufficient to mention that the High Court would not entertain a petition or challenge to nomination of a candidate, whose nomination has been accepted by the returning officer normally, as the remedy for such an aggrieved person lies in filing the election petition, after the elections are over."
In the case of Mohinder Singh Gill versus Chief Election Officer, New Delhi;AIR 1978 SC 851/ (1978) 1 SCC 405, the Apex Court has held that the sole remedy to an agrrieved party is an Election Petition and this exclusion of all other remedies includes Constitutional remedies like Article 226 because of the non-obstante clause.
Adverting to the facts of the case in hand the allegation of the petitioner is regarding non disclosure or false disclosure of assets and source of income by the opposite party no.5 which would constitute corrupt practice as held in the case of Lok Prahri (supra) for which Election Petition can be filed under Section 12(c) of the U.P. Panchayat Raj Act, 1947.
In view of above, I am of the considered view that the present writ petition is not maintainable. It is totally misconceived and devoid of any merit hence it is liable to be dismissed.
The writ petition is, accordingly, dismissed.
No order as to costs.
(Rajnish Kumar, J) Order Date:-31.08.2018/ Akanksha S.