JUDGMENT D.P. Mohapatra, C.J.
1. The decision of those cases depends on interpretation of certain relevant provisions of the U. P. Kshettra Panchayats and Zila Panchayats Adhintyam, 1961 (hereinafter referred to as the Act) and its interaction with the relevant provisions of the U. P. Zila Panchayats (Election of Adhyaksha and Upadhyaksha and Settlement of Election Disputes) Rules, 1994 (hereinafter referred to as the Rules).
2. The controversy raised in these cases relates to the election of Adhyaksha of Gonda Zila Panchayat. The main contesting parties in the dispute are Smt. Geeta Singh, who has during the pendency of the cases, been declared elected as a Member of the Zila Panchayat, Gonda from Constituency No. 29, Rupai Deeh, District Gonda on 22.12.1996 and Smt. Seema Pandey, who contested the election of Adhyaksha of Zila Panchayat, Gonda, result of which is yet to be declared. The State Election Commission, Panchayat and Local Bodies U. P., through Election Commissioner, the District Election Officer (Panchayat)/District Magistrate, Gonda, the Electoral Registration Officer, Gonda/District Development Officer, Gonda, the Block Development Officer. Block Rupai Deeh, District Gonda, the Sub-Divisional Magistrate, Gonda/Returning Officer for Block Rupai Deeh, District Gonda, the State of U. P., through the Secretary, Panchayati Raj and Sri R. D. Sonkar. Election Commissioner of Panchayati Raj and Local Bodies are arrayed as opposite parties in most of the cases.
3. In pursuance of the decision of the State Government to hold elections of Gram Panchayats, Kshettra Panchayats and Zila Panchayats in Uttar Pradesh, the State Election Commissioner issued the notification dated 20.3.1995,by which the election process was to be completed by 18th April. 1995 in 57 districts including the district of Gonda. In pursuance of the said notification, the District Election Officer (Panchayat)/District Magistrate. Gonda issued the notification, dated 23.3.1995 for holding elections in district Gonda. In the said election, one Smt. Madhulika Misra was elected as a Member of the Zila Panchayat, Gonda on 19.4.1995 from Constituency No. 29 Rupai Deeh. Smt. Geeta Singh had not contested the election since by then her name had not been included in the electoral roll of Constituency No. 29 Rupai Deeh. Unfortunately Smt. Madhulika Misra, Member of Zila Panchayat Gonda from Constituency No. 29 Rupai Deeh, died on 18.7.1995, which gave rise to a vacancy. The Election Commissioner by the notification dated 24.8.1995 notified the election programme for the vacancies caused due to death or resignation of a person or otherwise. According to the said notification, the election of Member of Zila Panchayat, Gonda from Rupai Deeh Constituency was to be completed by 15.9.1995. In pursuance of the said notification, the District Election Officer (Panchayat)/District Magistrate, Gonda issued the notification dated 26.8.1995. In pursuance of the notification dated 26.8.1995, Smt. Geeta Singh filed her nomination paper on 4.9.1995 since her name had, in the meanwhile, been included in the electoral roll by the Block Development Officer, Block Rupai Deeh/Assistant Electoral Registration Officer, Rupai Deeh. District Gonda on 19.8.1995 under the directions of the Electoral Registration Officer, Gonda/District Development Officer, Gonda dated 15.5.1995/9.8.1995. After scrutiny and withdrawal of nomination papers, 9 candidates, including Smt. Geeta Singh, were left in the fray.
4. When the election campaign was on, on a complaint filed by Sri Ghanshyam Shukla M.L.A, and objections raised in the letter dated 8.9.1995 of the Panchayat Raj and Parliamentary Affairs Minister, the Election Commissioner by his order dated 13.9.1995 cancelled the order dated 9.8.1995 by which the name of Smt. Geeta Singh was included in the electoral roll. Being aggrieved by the said order. Smt. Geeta Singh filed Writ Petition No. 2024 (M/S) of. 1995 on 20th September, 1995, praying, inter alia, for (U a writ, direction or order in the nature of certiorari quashing the order dated 13.9.1995 passed by the Election Commissioner (Annexure 1 to the writ petition), by which order the by-election from Constituency No. 29 Rupai Deeh was countermanded and the order by which the name of the petitioner (Smt. Geeta Singh) was included in the electoral roll of village Mau Shamsabad falling within the jurisdiction of Gram Panchayat Bhawanipur Khurd, Block Rupai Deeh, District Gonda was cancelled, (ii) a writ, direction or order in the nature of mandamus commanding the opposite parties to conduct the election of Member of Zila Panchayat from the Constituency No. 29, Block Rupai Deeh, District Gonda from the stage of interruption and allow the petitioner to contest the election, (iii) a writ, direction or order in the nature of mandamus commanding the opposite parties not to fix any date of election of Adhyaksha, Zila Panchayat, Gonda till the election of the Member of Zila Panchayat from the Constituency No. 29, Rupai Deeh, District Gonda is not complete.
5. By judgment rendered by this Court on 22.12.1995, the writ petition was allowed, a writ of certiorari was issued quashing the order dated 13.9.1995 passed by the State Election Commissioner, Panchayat and Local Bodies and a writ in the nature of mandamus was issued commanding the opposite parties to hold the election or polling of the constituency in question on 27th December, 1995 and declare the result latest by 28th December, 1995. During the pendency of the writ petition, by the interim order dated 22.9.1995 operation of the impugned order dated 13.9.1995 had been stayed until further orders of the Court. The said judgment was challenged in Special Appeal No. 66 of 1996 filed by the State Election Commissioner, which was dismissed on 20.5.1996. A Division Bench of this Court directed that election for membership of Zila Panchayat Gonda be ensured within a period of one month from the date of the order from the stage it was interdicted. Against the order of the Division Bench, the Election Commissioner filed Special Leave Petition before the Supreme Court in which operation of the impugned order was stayed. The Special Leave Petition was dismissed on 29.4.1996. Immediately thereafter, the State Election Commissioner notified the election for membership of Rupai Deeh Constituency No. 29 on 12.12.1996 directing the polling to be held on 21.12.1996. In the said election, Smt. Geeta Singh was declared elected as Member of Zila Panchayat Gonda from Constituency No. 29 Rupai Deeh on 22.12.1996.
6. Smt. Geeta Singh filed another writ petition--Writ Petition No. 2462 (M/S) of 1996 on 2.12.1996 seeking the reliefs, inter alia, (i) for issue of a writ, order or direction in the nature of certiorari quashing the notification dated 19.9.1996 for election of Adhyaksha and Upadhyaksha, Zila Panchayat Gonda, (ii) for issue of an appropriate writ, order or direction in the nature of certiorari quashing the notification dated 2.12.1996 (Annexure 7 to the writ petition) regarding the election of Member of Zila Panchayat Gonda, and (iii) for issue of an appropriate writ, order or direction to opposite parties to complete the election of member of Zila Panchayat Gonda from Constituency No. 29 from the stage it was interdicted and not to invite fresh nominations for the same. During the pendency of the case, an application for amendment was filed on 30.6.97/1.7.1997 in which the petitioner sought to add two more reliefs, namely, ft) by an appropriate writ, order or direction in the nature of certiorari or likewise the entire election process with regard to the election of Adhyaksha. Zila Panchayat, Gonda starting with the notification dated 19.11.1996 (Annexure 1 to the writ petition) and counting of votes on 5th December, 1996 be quashed and (ii) by an appropriate writ, order or direction the opposite parties be directed to allow only the women candidates elected from the reserved women constituencies to the office of the Adhyaksha Zila Panchayat, Gonda, and not a woman candidate elected from a general constituency. In the said case, by an interim order dated 4.12.1996 it was directed that polling for the election to the office of Adhyaksha may take place on 5.12.1996 but the result of the election shall not be declared till further orders of the Court. Subsequently, by another interim order passed on 15.1.1997. It was directed that the writ petition will come up for consideration of the stay application or for final disposal on 21.1.1997 and the interim order dated 4.12.1996 shall continue till 21.1.1997. The interim order was extended from time to time till 15.5.1997.
7. Smt. Geeta Singh filed yet another writ petition--Writ Petition No. 2236 (M/B) of 1997 in which in addition to the State of U. P.. State Election Commission, Panchayat and Local Bodies, through the State Election Commissioner, the District Election Officer (Panchayat)/District Magistrate, Gonda, Smt. Seema Pandey was also arrayed as opposite parties. The main relief sought in the writ petition was to issue a writ of mandamus to the State Election Commissioner to issue a notification regarding election of Adhyaksha. Zila Panchayat, Gonda and Balrampur and further to issue a writ of mandamus to the District Election Officer (Panchayat)/District Magistrate, Gonda not to declare the result of the election to the office of Adhyaksha Zila Panchayat, Gonda held on 5th December. 1996.
8. Smt. Seema Pandey filed Writ Petition No. 2269 (M/B) of 1997 on 19.6.1997 seeking a direction to the Returning Officer for the office of Adhyaksha, Zila Panchayat, Gonda/District Magistrate, Gonda, State Law Commission, Panchayat and Local Bodies, U. P. and the State of U. P. to announce the result of the election of the office of Adhyaksha Zila Panchayat Gonda at once so that the petitioner starts functioning as Adhyaksha Zila Parishad and to direct the opposite parties to desist from interfering with the functioning of the petitioner as Adhyaksha Zila Parishad Gonda.
9. One Smt. Vedwati filed Writ Petition No. 1713 (M/S) of 1997 on 1.7.1997 seeking a writ of mandamus to the Returning Officer for the election of the office of Adhyaksha, Zila Panchayat Gonda/District Magistrate, Gonda, Assistant Returning Officer/Chief Development Officer, Gonda and the State Election Commission, Panchayat and Local Bodies, U. P., Lucknow directing them to announce the result of the election of the office of Adhyaksha Zila Panchayat, Gonda at once so that the functioning of Gonda Zila Panchayat starts.
10. It is relevant to take note of yet another writ petition filed in this regard, being Writ Petition No. 2525 (M/S) of 1996, which was filed by Smt, Prabha Singh for quashing of the notification dated 19.11.1996 for election of Adhyaksha of Zila Panchayat Gonda on the ground, inter alia, that Smt. Seema Pandey having been elected as a member from the general constituency could not contest for the post of Adhyaksha Zila Panchayat Gonda, which is to be filled up only by a member elected from a constituency reserved for female candidate. By the judgment dated 16.5.1997, a single Judge of this Court allowed the writ petition, holding, inter alia, that Smt. Seema Pandey, who was elected from a general constituency, could not contest for the post of Adhyaksha Zila Panchayat, Gonda. The said Judgment was challenged in Special Appeal No. 142 (M/S) of 1997 filed by Smt. Seema Pandey. A Division Bench of this Court by the judgment rendered on 6.6.1997 allowed the appeal, inter alia, holding that the provisions of Article 243-O(b) of the Constitution of India applied and that the question of disqualification could be adjudicated in an election petition as provided under Section 27(2) of the Act.
11. From the genesis of the facts leading to the present proceedings as discussed above, it is manifest that all the cases are interlinked and intertwined with each other.
Therefore, with the consent of learned counsel for the parties, they were heard together.
12. The gist of the case of Smt. Geeta Singh was that the election of Adhyaksha, Gonda Zila Panchayat should not be held till such time as the by-election of member of Gonda Zila Panchayat from Constituency No. 20 Rupai Deeh was not completed because she, on getting elected as a member of the Zila Panchayat, intended to contest the election for Adhyaksha of the Zila Panchayat. Since there were some impediments in her way to contest the election of membership of the Zila Panchayat from Constituency No. 29 for the reason that her name was not included in the electoral roll of the said constituency, she had to approach this Court for redress of her grievance and this Court ultimately directed that the by-election should proceed from the stage at which it was interdicted and this Court quashed the order of the concerned authority cancelling the order including her name in the electoral roll and directed that the by-election of Constituency No. 29 Rupai Deeh will continue from the stage at which it was interdicted. Thereafter the election was held and she was declared elected as member of the Zila Panchayat on 22.12.1996. It is also the case of Smt. Geeta Singh that when this dispute was going on, the district of Gonda was bifurcated into two districts. Gonda and Balrampur; Constituency No. 14 Gangapur Banki from which Smt. Seema Pandey was declared elected as member of the Zila Panchayat is now a part of the district of Balrampur and, therefore, she cannot hold the post of Adhyaksha, Zila Panchayat Gonda. It is her case that under the circumstances, a fresh election should be held for electing Adhyaksha, Zila Panchayat Gonda.
13. The case of Smt. Seema Pandey, which is also similar to that pleaded by Smt. Vedwati is that neither there is any mandate in the Act or the Rules that the election of Adhyaksha is not to be held till by-election for member of Constituency No. 29 Rupai Deeh is held, nor is there any Justification for the same. Therefore, the result of the election of the Adhyaksha, Zila Panchayat Gonda, which had been held on 5th September, 1996 and counting of votes had been done, on which date Smt. Geeta Singh had not been declared elected as member of Zila Panchayat from Constituency No. 29 Rupai Deeh, should be declared forthwith and necessary steps should be taken for constituting the Gonda Zila Panchayat.
14. On the case of the contesting parties as discussed above, the core questions which, in our view, arise for determination are firstly whether there was any justification for postponing the election of Adhyaksha, Zila Panchayat Gonda on the ground that election/by-election of member of Zila Panchayat Gonda from Constituency No. 29 Rupai Deeh had not been held and secondly, whether in view of the fresh development in the proceedings due to bifurcation of the district of Gonda into two districts (Gonda and Balrampur), the election of Adhyaksha, Zila Panchayat, Gonda, polling and counting of votes of which had already been completed, should be ignored and a fresh election be held for the purpose.
15. Section 2 (11) of the Act defines "Zila Panchayat" to mean a Zila Panchayat established under Section 17 and shall include any committee and any member, officer or servant of the Zila Panchayat, authorised or required under the Act to exercise any power or perform any duty or function of the Zila Panchayat under the Act.
Section 17, which deals with establishment and incorporation of Zila Panchayats, runs thus:
"17. Establishment and incorporation of Zila Panchayats.--(1) The State Government shall, by notification in the Gazette, establish for each district, a Zila Panchayat bearing the name of the district.
(2) The Zila Panchayat established under sub-section (1) shall be a body corporate.
(2A) The Zila Panchayat shall have its office at such place as may be determined by the State Government, and until so determined, at the place at which it was situated immediately before the commencement of the Uttar Pradesh Kshettra Samities and Zila Parishads (Sanshodhan) Adhyadesh, 1955.
(3) Where a new district is created, the Zila Panchayat having jurisdiction in any area therein immediately before the creation of the new district shall continue to exercise such jurisdiction until a new Zila Panchayat is established in that district, and on the establishment of a new Zila Panchayat:
(i) all taxes, fees, fines or penalties imposed or levied, and all licences or permits granted on the date immediately preceding the date on which such Zila Panchayat is established (hereinafter called the said date), by the Zila Panchayat which had Jurisdiction in the area of the new district shall be deemed to have been imposed, levied or granted by the new Zila Panchayat under and in accordance with the provisions of this Act and shall, until abolished modified or changed, continue to be so realizable or effective ; and
(ii) anything done or any action taken, including any appointment or delegation made, notification, order or direction issued, rule, regulation, form, by-law or scheme framed, permit or licence granted or registration effected under the provisions of this Act by the Zila Panchayat having jurisdiction in the area of the new district immediately preceding the said date, shall with respect to the new district be deemed to have been done or taken by the new Zila Panchayat under the provisions of this Act and shall continue in force accordingly unless and until superseded by anything done or any action taken under this Act.
(4) If at any time any area is newly included in any existing district and on the date immediately preceding the date of such inclusion a Zila Panchayat was exercising jurisdiction over such area, the provisions of subsection (3) shall apply as if the area newly included were a new district and the Zila Panchayat newly constituted for the enlarged district were the new Zila Panchayat for the purpose of the sub-section."
Under Section 18, the composition of Zila Panchayat is provided. It is laid down therein that a Zila Panchayat shall consist of an Adhyaksha who shall be its Chairperson, and--(a) Pramukhs of all the Kshettra Panchayats in the district; (b) elected members, who shall be chosen by direct election from the territorial constituencies in the Panchayat area and for this purpose the Panchayat area shall be divided into territorial constituencies in such manner that, so far as practicable, each such territorial constituency shall have a population of fifty thousand ; (c) the members of the House of the People and the members of the Legislative Assembly of the State representing constituencies which comprise any part of the Panchayat area ; (d) the members of the Council of States and the members of the State Legislative Council who are registered as electors within the Panchayat area. In sub-section (2) it is laid down that the members of the Zila Panchayat mentioned in clauses (a), (c) and (d) of subsection (1) shall be entitled to take part in the proceedings and vote at the meetings of the Zila Panchayat except in the matters of election of, and on a motion of no confidence against, the Adhyaksha or the Upadhyaksha. In subsection (3) it is provided that each territorial constituency referred to in clause (b) of sub -section (1) shall be represented by one member.
In sub-section (2) of Section 18A, it is provided that not less than one third of the seats reserved under sub-section (1) shall be reserved for the women belonging to the Scheduled Castes, the Scheduled Tribes and the backward classes as the case may be. Sub-section (3) of Section 18A lays down that not less than one-third of the total number of seats, inlcuding the number of seats reserved under sub-section (2), shall be reserved for women and such seats may be allotted by rotation to different territorial constituencies in a Zila Panchayat in such order as may be prescribed.
In Section 19 of the Act, it is provided that in every Zila Panchayat an Adhyaksha and an Upadhyaksha shall be elected by the elected members of the Zila Panchayat from amongst themselves and in sub-section (2) of the said section it is laid down that the election to the office of Adhyaksha and Upadhyaksha may be held notwithstanding any vacancy in the office of the elected members of the Zila Panchayat.
According to the provision in sub-section (1) of Section 20, the life of a Zila Panchayat shall, unless sooner dissolved under Section 232, continue for five years from the date appointed for its first meeting and no longer.
In Section 21 it is laid down that save as otherwise provided in the Act, the term of office of the Adhyaksha or the Upadhyaksha shall commence on his election and shall end with the term of the Zila Panchayat.
Section 27 of the Act deals with disputes as to membership or disqualification. In sub-section (1) thereof it is laid down that if any dispute arises as to whether a particular person is a member of the Zila Panchayat under clause (a) of Section 18, the dispute shall be referred in the manner prescribed to the State Government and the decision of the State Government shall be final and binding. In sub-section (2) thereof it is provided that if a dispute arises as to whether a person has been lawfully chosen a member of a Zila Panchayat under Section 18, or has ceased to remain eligible for being chosen a member of the Zila Panchayat for the purposes of Section 20, or has become disqualified to be Adhyaksha or Upadhyaksha for the purposes of Section 19, the dispute shall be referred in the manner prescribed to the Judge, as defined in the Act, whose decision shall be final and binding.
16. We may now notice the relevant provisions of the Rules. Rule 28 provides that when the counting is completed and the result of the voting has been determined, the Returning Officer shall in the absence of any inspection by the State Election Commission to the contrary forthwith--(a) announce the result to those present; (b) report of result to the State Election Commission and the State Governments (c) prepare and certify return of the election in Form VIII; and (d) seal up in separate packets the valid ballot papers and the rejected ballot papers and record on each such packet a description of its contents.
Chapter IV of the Rules deals with disputes regarding election of Adhyaksha and Updhyaksha. In Rule 33, which contains the provision regarding the time and manner of presenting petitions, it is laid down, inter alia, that an election petition calling in question the election of an Adhyaksha or Upadhyaksha may be presented to the Judge at any time within thirty days from the date of declaration of the result under Rule 13 or Rule 28, as the case may be. Sub-rule (2) of this Rule is not relevant for the purpose.
17. From the provisions of the Act and the Rules discussed above, the position is manifest that there shall be a Zila Panchayat in each district. The Zila Panchayat shall consist of an Adhyaksha, who shall be its Chairperson, and elected members, who shall be chosen by direct election from the territorial constituencies in the Panchayat area, the members of the-House of the People and the members of the Legislative Assembly of the State representing constituency and the members of the Council of State and the members of the State Legislative Council who are registered as electors within the Panchayat area. In every Zila Panchayat, an Adhyaksha and an Upadhyaksha shall be elected by the elected members of the Zila Panchayat from amongst themselves and the election to the office of Adhyaksha and Upadhyaksha may be held notwithstanding any vacancy in the office of the elected members of the Zila Panchayat. Therefore, the case of Smt. Geeta Singh that till the election of member of Zila Panchayat from Constituency No. 29 Rupai Deeh was completed, election of Adhyaksha Zila Panchayat, Gonda could not be held, is untenable and unacceptable. As a natural consequence of this position. It has to be held that there was no justification for the interim order passed on 4th December, 1996 in Writ Petition No. 2462 (M/S) of 1996 directing stay of declaration of result of the election of Adhyaksha of Zila Panchayat, Gonda. We are constrained to observe that the learned single Judge did not consider the relevant statutory provisions which render the stand taken by Smt. Geeta Singh untenable. Since there was no prima facie merit in the case, there was no justification to pass any interim order interfering with the process of election of Adhyaksha of Gonda Zila Panchayat. The remarks made against the Election Commission are also unwarranted.
18. The other limb of the case of Smt. Geeta Singh is that the bifurcation of the district of Gonda into two districts (Gonda and Balrampur) has brought about a material change in the situation which affects the election of the Adhyaksha of Gonda Zila Panchayat. This contention is also devoid of merit in view of the clear statutory mandate in Section 17 (3) of the Act, which provides, inter alia, that where a new district is created, the Zila Panchayat having jurisdiction in any area therein immediately before the creation of the new district shall continue to exercise such Jurisdiction until a new Zila Panchayat is established in that district. The position is further clarified by the notification issued by the Governor of Uttar Pradesh, Panchayati Raj Anubhag 1, Notification No. 632/XXXIII-1-96-154-95, dated April 18, 1996, published in the U. P. Gazette, Extraordinary, Part 4, Section (Kha), dated 18th April, 1996. The notification reads:
"In exercise of the powers under Section 272 of the Uttar Pradesh Kshettra Panchayat and Zila Panchayats Act. 1961 (U. P. Act No. 33 of 1961), the Governor, for the purposes of removing difficulties in giving effect to the provisions of the said Act, is pleased to direct that the provisions of Section 18 of the said Act shall apply with the adaptation that where as a result of creation of a new district a territorial constituency of a Zila Panchayat to which election of the member has been held, is divided and any area of such territorial constituency is included in newly created district, the elected member from such constituency shall be deemed to be the elected member of that Zila Panchayat in the electoral rolls of which he is included as an elector."
19. The question that remains to be considered relates to the case of Smt. Geeta Singh that the election of Smt. Seema Pandey as Adhyaksha Gonda Zila Panchayat is invalid on the ground that she has been elected as a member "from a general constituency and the post of Adhyaksha of the said Zila Panchayat is reserved for women candidates. This contention, in our considered view, cannot be considered at this stage since the result of the election of Adhyaksha Gonda Zila Panchayat has not yet been declared. Such a contention can appropriately be raised in an election petition filed under Section 27 of the Act read with Rule 33 of the Rules. The view taken by us gains support from the provisions in Article 243-O of the Constitution of India in which it is clearly mandated that notwithstanding anything in the 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 ; and (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. It is mandated in Article 243B that there shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of this Part (Part IX). Since we have taken the view that the validity of the election of Adhyaksha of Gonda Zila Panchayat cannot be challenged except by filing an election petition, we do not intend to discuss the contentions raised in this regard by learned counsel appearing for Smt. Geeta Singh and the decisions cited by him. We feel that any observation on merits may affect any of the parties if and when the election is challenged before the competent forum in an election petition.
20. On the analysis and the discussions made in the foregoing paragraphs it is our considered view that the result of the Adhyaksha, Zila Panchayat. Gonda, should be declared without any further delay and requisite steps should be taken for constituting the Zila Panchayat in accordance with the provisions in the Act and the Rules.
21. Accordingly Writ Petition No. 1713 (M/S) of 1997 and Writ Petition No. 2269 (M/B) of 1997 are allowed and Writ Petition No. 2462 (M/S) of 1996 and Writ Petition No. 2236 (M/B) of 1997 are dismissed.
There will, however, be no order for costs of these proceedings.