Heard learned counsel for the petitioner, learned Addl. C.S.C. as also Sri Rakesh Chaudhary, Advocate appearing for the opposite party no.6.
This is a writ petition under Article 226 of the Constitution of India challenging an order dated 10.11.2015 passed by the Sub Divisional Magistrate / Assistant Electoral Registration Officer (Panchayat), Lalganj, Pratapgarh, as well as another order dated 20.11.2015 passed by the Additional Collector / Electoral Registration Officer (Panchayat), Pratapgarh.
Contention of Shri Parihar, Learned Senior Counsel appearing for the petitioner, in nutshell, was that the opposite party no. 5 was not ordinarily resident of village Ramgarh Raila and he came to reside there only on 27.10.2015, barely a couple of days prior to the notification of the elections on 06.11.2015, and his name was incorrectly and illegally included in the electoral list for elections to newly formed Nyay Panchayat Ramgarh Raila. It was his submission that this could not be a ground for challenging the election of opposite party no. 5 as is the settled legal position, therefore, this Court alone has jurisdiction to exercise extraordinary jurisdiction to ascertain the validity of the impugned order. He prays that the impugned order be quashed as the name of the opposite party no. 5 has been wrongly included in the electoral roll.
On the other hand Shri M A Khan, learned Senior Counsel appearing for the opposite party no. 5 has invited attention of the Court to various documents filed by him along with the counter affidavit to demonstrate that though the opposite party no. 5 was originally the resident of Gram Panchayat known as Gram Panchayat Sarai Lohangrai (Kathwad), he had shifted to village Lalupur which was the part of then Gram Panchayat Ramgarh Raila in 1990 and subsequently in March 2015 consequent to the bifurcation and Delimitation of Gram Panchayat when a new Gram Panchayat by the same name Ramgarh Raila was formed, he moved an application in March 2015 or thereafter for deletion of his name from the electoral roll pertaining to village Lalupur which alongwith village Matha had been formed into a new Gram Panchayat and for including his name in the pre-constituted Gram Panchayat Ramgarh Raila, accordingly his name was included in the electoral roll of the said Gram Panchayat. It was also his contention that in fact he had a house in Padkiya which is a Hamlet of Ramgarh Raila and had been residing therein for the past 8 to 10 years.
This assertion was challenged by Shri Parihar by saying that by the impugned orders the names of all the family members had been ordered to be struck off from the electoral roll pertaining to reconstituted Gram Panchayat Ramgarh Raila on the ground that they were residents of Gram Panchayat kathwad, therefore, he said it was indeed surprising that all the family members including the wife of the opposite party no. 5 their names had been retained in the electoral roll of Gram Panchayat Kathwad, the name of opposite party no. 5 has been allowed to be retained in the reconstituted Ramgarh Raila and has been ordered to be deleted from village Lalupur which now is a separate Gram Panchayat.
A pointed query was put to Shri JP Maurya, learned Additional CSC, as to when did the opposite party No. 5 apply for deletion of his name from the electoral roll pertaining to the Gram Panchayat, of which, village Lalupur was a part and for inclusion of his name in the reconstituted Gram Panchayat Ramgarh Raila, he pointed out that original records which were available did not contain this information.
Shri Khan, Learned Senior Counsel was also asked in this regard, but he also said that he did not have relevant information and document in this regard.
The original records reveal a report of the Revenue Inspector which, inter alia, says that the opposite party no. 5 had come to reside in the newly reconstituted Ramgarh Raila on 27.10.2015, however, it is not known on what basis this has been said.
The fact of the matter is that opposite party no. 5 was originally a resident of the Gram Panchayat Kathwad as stated hereinabove. He moved to village Lalupur at some point of time. To this extent there is not much of a dispute. The dispute has arisen on account of delimitation and bifurcation of the erstwhile Gram Panchayat Ramgarh Raila which earlier comprised of village Ramgarh Raila, Lalupur and Pure Matha and sometime in March 2015 or thereafter, consequent to the reorganization of Gram Panchayats, a separate Gram Panchayat Lalupur comprising of village Lalupur and Pure Matha was constituted thereby leaving Gram Panchayat Ramgarh Raila including its Hamlet Padkiya as separate Gram Panchayat with curtailed territories. The opposite party no. 5 herein was earlier the Gram Pradhan of erstwhile Gram Panchayat Ramgarh Raila from 2010 till 2015 when village Lalupur was part of the said Gram Panchayat. Now once the bifurcation took place sometimes in 2015 and the new Gram Panchayat Ramgarh Raila came into existence which did not comprise village Lalupur and as the newly constituted Lalupur was reserved for Scheduled Caste, the only option to the opposite party no. 5 was to contest the elections from somewhere else. It is in this scenario that he claims to have submitted some application/form for including his name in the electoral roll of the newly constituted Gram Panchayat Ramgarh Raila and was accordingly so included.
On a perusal of the impugned orders the Court can only say that consideration of the issue therein is bereft of relevant aspects which were required to be considered in law. The order of the Sub Divisional Magistrate is apparently contradictory. The Court does not wish to say much on the manner in which consideration has been done by the two officers for the reason it intends to remand the matter back for reconsideration.
It is fruitful to refer to relevant provisions of the U.P. Panchayat Raj Act 1947 in this regard. Section 2(h) defines the term "Gram Panchayat" to mean "the Gram Panchayat constituted under section 12". Section 2(ll) defines the term "Panchayat Area" to mean "the territorial area for Gram Panchayat declared as such under sub-section (1) of section 11-F". Section 2(p) defines the word "prescribed" to mean "prescribed by this Act or Rules made thereunder". Section 11-B(1) provides that "the Pradhan of the Gram Panchayat shall be elected by the persons registered in the electoral rolls for the territorial constituencies of the Panchayat Area from amongst themselves". Section 11-F(1) provides that the State Government may, by notification, declare any area comprising a village or group of villages, having, so far as practicable, a population of 1000, to be a Panchayat Area for the purposes of this Act by such name as may be specified. Thus, a Panchayat Area can comprise of a village or group of villages. It is this aspect which poses a problem in the present case. Gram Panchayat Ramgarh Raila as existing prior to its reconstitution in 2015 comprised of three villages i.e. Lalupur, Ramgarh Raila and Pure Matha and after bifurcation village Lalupur and Pure Matha were taken out and a new Gram Panchayat namely Lalupur was constituted. As per the opposite party no. 5's own affidavit he had shifted from village kathwad to village Lalupur in 1990, therefore, obviously when he fought the elections for the office of Gram Pradhan Ramgarh Raila in 2010, village Lalupur was its part and he being a resident of village Lalupur his name was included in the electoral roll of Gram Panchayat Ramgarh Raila. The problem arose only in 2015 when the office of Gram Pradhan Lalupur was reserved for 'Scheduled Caste' after its reconstitution. This left the opposite party no. 5 with no other option but to contest elsewhere. It is in this scenario that he claims that he is the resident of the newly constituted Gram Panchayat Ramgarh Raila comprising of village Ramgarh Raila alone of which its Hamlet Padkiya is a part wherein he says that he owns a house, although it has also come on record that he is alleged to have illegally occupied the house barely a couple of days prior to the notification of the elections to the newly constituted Ramgarh Raila regarding which proceedings for his eviction etc. are going on under section 67 of the U.P. Land Revenue Code 2006. It is in this scenario that his name was included in the electoral list of Gram Panchayat / village Ramgarh Raila for the elections 2015 which he won and of which he is the Gram Pradhan at present.
As per section 12 a Gram Panchayat is to be constituted for every Panchayat Area bearing the name of the Panchayat. Now reference may be made in this regard to Section 9 of the Act 1947 which reads as under:
"9. Electoral roll for each territorial constituency - (1) For each territorial constituency of Gram Panchayat, and electoral roll shall be prepared, in accordance with the provisions of this Act and the rules made thereunder] the superintendence, direction and control of the State Election Commission.
(1-A) Subject to the Superintendence, direction and control of the State Election Commission, the Mukhya Nirvachan Adhikari (Panchayat) shall supervise and perform all functions relating to the preparation revision and correction of the electoral rolls in the State in accordance with this Act and the rules made thereunder.
(1-B) The preparation, revision and correction of the electoral rolls shall be done by such persons, and in such manner, as may be prescribed;
(2) The electoral roll referred to in sub-section (1) shall be published in the prescribed manner and upon its publication it shall, subject to any alteration, addition or modification made in accordance with this Act and the rules made thereunder be the electoral roll for that territorial constituency prepared in accordance with the provisions of this Act.
(3) Subject to the provisions of sub-section (4), (5) and (7) every person who has attained the age of 18 years of the first day of January of the year in which the electoral roll is prepared or revised and who is ordinary resident in the territorial constituency of a Gram Panchayat shall be entitled to be registered in the electoral roll for that territorial constituency.
Explanation -
(i) A person shall be deemed to be ordinarily resident in the territorial constituency on the found only that he owns, or is in possession of, a dwelling house therein.
(ii) A person absenting himself temporarily from his place of ordinary residence shall not by reason thereof cease to be ordinarily resident therein,
(iii) A member of Parliament or of the Legislature of the State shall not, during the term of his office, cease to be ordinarily resident in the territorial constituency merely be reason of his absence from that area in connection with his duties as such member.
(iv) Any other factor that may be prescribed shall be taken into consideration for deciding as to what persons may or may not be deemed to be ordinarily residents of a particular area at any relevant time.
(v) 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.
(4) A person shall be disqualified for registration in an electoral roll, if he -
(a) is not a citizen of Indian; or
(b) is of unsound mind and stands so declared by a competent court; or
(c) is for the time being disqualified from voting under provisions of any law relating to corrupt practices and other offences in connection with elections.
(5) The name of any person who becomes disqualified under sub-section (4) after registration shall forthwith be struck off the electoral roll in which it is included;
Provided that the name of any person struck off the electoral roll by reason of any such disqualification shall forthwith be reinstated in that roll, if such disqualification is, during the period such roll is in force, removed under any law authorizing such removal.
(6) No person shall be entitled to be registered in the electoral roll for more than one territorial constituency or more than once in the electoral roll for the same territorial constituency.
(7) No person shall be entitled to be registered in the electoral roll for any territorial constituency if his name is entered in any electoral roll pertaining to any city, municipality or cantonment unless he shows that his name has been struck off such electoral roll.
(8) Where the "Electoral Registration Officer or Assistant Electoral Registration Officer" is satisfied after making such inquiry as it may deem fit, whether on an application made to it or on its own motion, that any entry in the electoral roll should be corrected or deleted or that the name of any person entitled to be registered should be added in the electoral roll, it shall subject to the provisions of this Act and rules and orders made thereunder, correct, delete or add the entry, as the case may be :
Provided that no such correction, deletion or addition shall be made after the last date for making nominations for an election in the Gram Panchayat and before the completion of that election;
Provided further that no deletion or correction of any entry in respect of any person affecting his interest adversely shall be made without giving him reasonable opportunity of being head in respect of the action proposed to be taken in relation to him.
(9) The State Election Commission may, if it thinks it necessary so to do for the purposes of a general or by election, direct a special revision of the electoral roll for any territorial constituency of a Gram Panchayat in such manner as it may think fit;
Provided that subject to the other provisions of this Act, the electoral roll for territorial constituency, as in force at the time of issue of any such direction, shall continue to be in force until the completion of the special revision so directed.
(10) In so far as provision is not made by this Act or the rules, the State Election Commission] may, by order, make provisions in respect of the following matters concerning the electoral roll, namely,-
(a) the date on which the electoral roll prepared under this Act shall come into force and its period of operation;
(b) the correction of any existing entry in the electoral roll on the application the elector concerned;
(c) the correction of clerical or printing errors in electoral roll;
(d) the inclusion in the electoral roll of the name of person -
(i) whose name is included in the Assembly electoral roll for the area relatable to the territorial constituency but is not included in the electoral roll for that territorial constituency or whose name has been wrongly included in the electoral roll for some other territorial constituency, or
(ii) whose name is not so included in the Assembly electoral roll but who is otherwise qualified to be registered in the electoral roll for the territorial constituency;
(e) the custody and preservation the electoral roll;
(f) fees payable on application for inclusion or exclusion of names;
(g) generally all matters relating to the preparation and publication of the electoral roll.
(11) Notwithstanding anything contained in the foregoing sub-section the State Election Commission may, for the purposes of preparation of the electoral roll for a territorial constituency adopt the electoral roll for the Assembly constituency prepared under Representation of the People Act, 1950 for the time being in force so far as it relates to the area of that territorial constituency;
Provided that the electoral roll for such territorial constituency shall not include any amendment, alteration or correction made after the last date for making nomination for the election of such constituency and before the completion of such election.
(12) No Civil Court shall have jurisdiction -
(a) to entertain or adjudicate upon the question whether any person is or is not entitled to be registered in an electoral roll for a territorial constituency; or
(b) to question the legality of any action taken by or under the authority of the State Election Commission 1 [or of any decision given by any authority or Officer appointed in this behalf] in respect of preparation and publication of electoral rolls."
Sub-section (3) of section 9 provides that subject to the provisions of sub-sections 4, 5, 6 and 7 every person who has attained the age of 18 years on the first day of January of the year in which the electoral roll is prepared or revised "and who is ordinarily resident" in the territorial constituency of a gram panchayat, shall be entitled to be registered in the electoral roll for that territorial constituency. Now it is not in dispute that in 1990 the opposite party no. 5, as per his own affidavit, shifted to village Lalupur which was at that time part of the Gram Panchayat Ramgarh Raila. In 2015 consequent to the reconstitution of Gram Panchayat Village Lalupur was taken out of Gram Panchayat Ramgarh Raila and as opposite party no. 5 was the Gram Pradhan of the said Gram Panchayat being a resident of village Lalupur, therefore, obviously he ceased to be a resident of Gram Panchayat Ramgarh Raila comprising of village Ramgarh Raila, unless he could show that he was also ordinarily resident of the said village / Gram Panchayat, therefore, the relevant aspect which was required to be considered by the authorities was as to whether in fact opposite party no. 5 was ordinarily resident of village / Gram Panchayat Ramgarh Raila as reconstituted in the year 2015 or not. In this context this Court had asked Shri JP Maurya, learned Additional CSC to apprise the court as to what is the criteria / parameters laid down by the State Government for determining as to whether a person is ordinarily resident of a Panchayat Area or not for the purposes of section 9 of the Act 1947 vide orders dated 23.9.2019 and 16.10.2019 which reads as under:
"Learned counsel for the petitioner is directed to implead State Election Commission as opposite party in this petition and serve a copy of this petition upon its standing counsel who shall seek instructions and assist the Court as to whether any criteria has been laid down by the Election Commission or the Government, as the case may be, for determining as to whether a person is 'ordinarily resident' in a particular Gram Panchayat/Village for the purpose of inclusion of his/her name in the electoral roll under Section 9 of the U.P. Panchayat Raj Act, 1947 (hereinafter referred to as 'the Act, 1947').
The learned standing counsel shall produce the original records on the basis of which the impugned order has been passed including the records pertaining to inclusion of name of opposite party no.5 Brijendra Mani Yadav in the electoral roll of village Ramgarh Raila, prior to 2015 and after bifurcation in 2015 and shall also seek instructions as to whether there are any guidelines and criteria prescribed for determining whether a person is 'ordinarily resident' of the Gram Panchayat of a village or not?
List this case on 16.10.2019 amongst first ten cases in the cause list." (Order Dt. 23.9.2019) "List this case on 30.10.2019 showing the name of Sri R.K. Chaudhary as counsel for newly impleaded opposite party no.6 to enable the learned Additional Chief Standing Counsel Sri Maurya to comply with the order dated 23.09.2019 with regard to the criteria prescribed, if any, by the State Government for determining as to whether a person is ordinarily resident of a Gram Panchayat. The record which is said to available today shall again be produced by the learned counsel on the next date." (Order Dt. 19.10.2019) Thereafter the State Officials have filed a counter affidavit, but the same does not indicate anything as to the queries made by this Court in the aforesaid orders i.e. it does not disclose the criteria or the parameters for determining an "ordinarily resident" of the Panchayat Area. The original records have also been produced before the Court, but they do not do not help the Court in this regard.
The Election Commission was also asked to assist the Court on this issue, but the learned counsel for the Election Commission Sri Choudhary stated that it is for the State Government to determine as to who would be "ordinary resident" of a Panchayat Area and what would be the relevant parameters. He invited attention of the Court to a booklet published by the Election Commission in 2016 containing a provision which is nothing but almost a verbatim reproduction of section 9 of the Act 1947.
Sri Choudhary, Advocate has also placed before the Court a letter dated 20.02.2015 issued by the State Election Commission U.P. which again does not contain anything except almost a verbatim reproduction of Section 9 of the Act 1947.
Sri Parihar, learned counsel appearing for the petitioner has placed before the Court a decision by a Single Judge Bench dated 7.9.2011 rendered in Civil Miscellaneous Writ Petition No. 39002 of 2011, Pooja Singh vs State and others, wherein the concept of "ordinarily resident" has been considered, albeit in a different context. Likewise, another decision has been placed before the Court which is reported in 2012 (2) ADJ 720, Arvind Kumar vs State of U.P. and others, wherein also the term "ordinarily resident" has been considered in the context of grant of Arm licence, and reliance has been placed on the dictionary meaning of the term as also various decisions of the Supreme Court and High Courts. A reference has also been made to a decision of the Supreme Court reported in 2002 (2) SCC 20, Union of India vs Doodhnath Prasad, wherein the term "Domicile", "Residence" and "Ordinarily Residents" came up for consideration in the context of reservation for SC/ST, and section 20 of the Representation of People Act 1950 defining "Ordinarily Resident" was also taken into consideration. It was held that the meaning of term is not confined to what has been stated in section 20 of the Act 1950, but there are other factors which are also required to be taken into consideration as the said provision is only for the purposes of election. The term "Residence" and "Domicile" came up for consideration in another decision of the Supreme Court reported in 1981(4) SCC 517, Smt. Jeevanti Pandey vs Kishan Chandra Pandey.
Be that as it may, the fact of the matter is that the Act 1947 does not define the term "ordinarily resident", nor do the Rules made thereunder. Reference may be made in this regard to the U.P. Panchayat Raj Act (Registration of Electors) Rules 1994 which have been framed by the State Government in exercise of its powers under sub-section (2) of section 9 and section 110 of the Act 1947. The said Rules also do not define the term "ordinarily resident". Section 10 thereof merely contains the provision for filing objections to entries in the electoral roll and thereafter Rules 11 to 16 provide the procedure and the manner in which a decision has to be taken on such objections after enquiry.
When this Court reverts back to the provisions contained in section 9 and considers the explanation to sub-section (3) thereof it finds that Clause 1 to 3 are expressed in a negative language, therefore, they only indicate as to what would not be treated as a factor while determining whether a person is ordinarily resident of the Panchayat Area or not. Clause 4 of the explanation is, however, relevant as it says any other factor that may be prescribed shall be taken into consideration for deciding as to what person may or may not be deemed to be ordinarily resident of a particular area at a relevant time. Clause 5 further provides that if in any case a question arises as to whether a person is ordinarily resident at any relevant time, the question shall be determined with reference to all the facts of the case. It is in this context that this Court had asked the State Counsel to seek specific instructions as to what were the factors which according to the State Government were relevant for determining weather a person was ordinarily resident of a Panchayat Area or not, but in spite of repeated requests no satisfactory instructions were provided by the State officials through the Additional Chief Standing Counsel in spite of his best efforts and in spite of the fact that hearing of this case went on for several dates and the State had sufficient opportunity to place before the Court the relevant Government Orders, Circulars or Rules, if any, which may have been framed or issued in the regard.
The word "prescribed" used in clause 5 is relevant as it gives an indication as to who is to determine the criteria for ascertaining the question of ordinarily resident, whether it is the Election Commission or the State Government. The Word "prescribed" as already referred earlier is defined in section 2(p) to mean "prescribed by this Act or the Rules made thereunder". Now the Act does not prescribe any positive factors to be taken into consideration in this regard. As already stated, the explanation merely says what would not by itself be conclusive while determining the question of "ordinarily resident", therefore, this makes this Court look into the Rule making powers of the State Government which is contained in section 110. The Court finds that sub-section (1) and section 110 gives general powers to the State Government to make Rules for carrying out the purposes of this Act. This apart under sub-section (2), in particular, and without prejudice to the generality of the provisions contained in sub-section (1), the State Government has power to make such Rules which may provide for, inter alia, (i) any matters for which power to make provision for such is conferred expressly or by implication on the State Government by this Act. Now considering the provisions of section 9, especially sub-section (2), (3) and explanation thereto and the fact that Rules in fact had been framed by the State Government referred hereinabove as the Rules 1994 for registration of electors, this Court has no doubt in its mind that it is the State Government who is competent to make necessary prescriptions in terms of explanation Clause 4 to sub-section (3) of Section 9, but it has not been done as yet. It is on account of absence of any such prescription by the State Government that a lot of litigation takes place on the issue of "ordinarily resident" in the context of elections to Gram Panchayats.
Shri Choudhary, learned counsel informs that the next elections to the Gram Panchayats are proposed to be held in October-November 2020 which obviously would generate further disputes and litigations including disputes involving this issue. In view of this the State Government is under an obligation, keeping in mind the larger issues involved, to make amendments in the Rules 1994 by incorporating reasonable, fair and legally sustainable parameter/criteria which can guide the competent authority in proceedings under Rules 10 to 16 for determining the question of "ordinarily resident" in this context.
Coming back to the validity of the impugned orders while it is true that there is no guideline as of now by the State Government as to who is the ordinarily resident of the Panchayat Area, it is equally true that there are judgments defining the said term. Generally speaking this should have been taken into consideration by the concerned authority and should have been applied in the context of the elections and the Act 1947 suitably, but this court finds that nothing has been done. The manner in which the Authorities have decided the issue has led to further litigation and has hardly helped in resolving the matter either way. As the Authorities have not applied their mind to relevant aspects of the matter and have passed the order cursorily, therefore, there is no occasion for this Court to delve into these factual issues and record its own conclusions which may involve findings of facts, instead, it is for the Authorities to reconsider the matter in the light of what has been stated hereinabove. In fact this Court finds that the order of the Sub Divisional Magistrate is apparently contradictory for various reasons which are borne out from bare reading of the order. For most of the orders it appears as if he is the ruling in favour of the petitioner, but ultimately in the last three lines there is a twist and he has cursorily mentioned that it would not be proper to delete the name of the opposite party no.5 Gram Pradhan from the electoral roll of newly constituted Gram Panchayat Ramgarh Raila and his name should be deleted from the earlier village. This he has done while ordering deletion of the name of all other family members of the opposite party no.5 from the newly constituted Ramgarh Raila. The question, as to since when the opposite party no.5 was residing at the newly constituted Gram Panchayat Ramgarh Raila i.e. village Ramgarh Raila, whether the house which he is occupying is in his illegal occupation, as it is said that proceedings under section 67 are going on, were relevant aspects which required a factual inquiry. Report of the Revenue Inspector itself is not satisfactory for various reasons. He has not mentioned as to on what basis he has come to the conclusion that the opposite party no.5 is residing at Ramgarh Raila with effect from 27.10.2015. Whether any of the villagers has given such statement or that he has found it to be so during the course of inquiry.
In view of the above the impugned orders dated 10.11.2015 and 20.11.2015 are hereby quashed. The matter is remanded back to the opposite party no.4 for a consideration afresh and decision thereon accordingly keeping in mind the observations made hereinabove.
The State Government is directed to consider making provision in the Rules to facilitate determination of the term "ordinarily resident" as occurring in sub-section (3) and section 9 of the Act 1947 so as to avoid further disputes and litigation in the matter.
It is made clear that this Court has not recorded any conclusive opinion with regard to any issue on merits of the matter regarding inclusion or exclusion of the opposite party no.5's name from the electoral rolls of the Gram Panchayat Ramgarh Raila, which shall be done by the official opposite parties, meaning thereby it shall be open for the concerned opposite party to decide the issues in accordance with law as aforesaid.
Records produced today are returned back to Sri J.P. Maurya, learned Addl. C.S.C.
The opposite party no.4 shall decide the matter within four months from the date a certified copy of this order is submitted.
With the above observations/directions the writ petition is disposed off.
(Rajan Roy, J.) Order Date :- 17.12.2019 A.Nigam