Heard Sri T.N. Tiwari, learned counsel for the petitioner, learned Standing Counsel and Sri N.C. Mehrotra on behalf of the respondent.
By means of the present writ petition the petitioner has prayed for quashing of the voter-list published by the respondents for conducting the Election of Pradhan in Mulahimpur Vikas Khand Khairabad District Sitapur under Panchayat Raj Act.
Facts in brief as submitted by the learned counsel for the petitioners are to the effect that the petitioners are resident of Village Arjunpur, Hamlet Mulahimpur Vikas Khand Khairabad, District Sitapur. On 24.09.2010, for the first time they came to know that a supplementary voter-list has been published by the concerned respondent for the purpose of conducting the election of Pradhan for Gram Panchatyat at Mulahimpur Vikas Khand, Khairabad, District Sitapur (hereinafter referred to as the Election in question). In the said voter-list, the name of the petitioners does not find place.
Learned counsel for the petitioner further submits that the petitioner No. 1 wants to contest the forthcoming election in question, petitioner No. 7 is sitting Pradhan and petitioner No. 2 is a member of Block Development Committee. The said action on the part of the respondents thereby deleting the name of the petitioners from the voter-list is arbitrary, mala fide exercise of power done with oblique motive and purpose only to deprive the petitoiner No. 1 from contesting Election in question.
Aggrieved by the said facts, the petitioners submitted representation to the Commissioner, U.P. State, Election Commission as well as District Magistrate/Sub-Divisional Magistrate, Sitapur (Annexure Nos,. 6 and 7) however they have no hope of getting justice from their end, so, the present writ petition has been filed for redressal of their grievances.
Sri T.N. Tiwari, learned counsel for the petitioners submits that the impugned action on the part of the respondents thereby deleting the names of the petitioners from the voter-list (Annexure-1) is an action arbitrary in nature as the same has been done without providing any opportunity of hearing whatsoever to them and also in contravention to the Proviso to Sub-Section 8 of Section 9 of the U.P. Panchayat Raj Act, 1947 (hereinafter referred to as the Act, which provides as under:-
"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:"
He further submits that as per the abovesaid proviso any deletion or correction of any entry in the voter-list in respect to any person affecting his interest adversely shall not be made without giving reasonable opportunity of hearing to him, further the impugned action is in contravention to Rule 15 of U.P. Panchayat Raj (Registration of Electoral Rolls) 1994 (hereinafter referred to as the Rules).
Learned counsel for the petitioners has admitted the fact that they have a right of appeal under Rule 21(A) of the Rules but due to paucity of time and as the order threby deleting the name of petitioner is an action on the part of respondent without jurisdiction, so the present writ petition thereby challenging the same is maintainable under Article 226 of the Constitution of India. In support of his argument he rely on the judgment passed in the case of Mangal Dev and another Vs. State Election Commission and others 2005 (4) AWC 3127 and order dated 17.09.2010 passed in Writ Petition No. 9358 (MB) of 2010 by this Court in the case of Vinod Singh and another Vs. State Election Commission, U.P., Lucknow and others held as under:-
"Accordingly, this writ petition is disposed of with a direction to District Collector, Hardoi to decide and dispose of the pending representation of petitioner, before the schedule of filing nomination papers starts, on merits and in accordance with law.
It seems from the records that the District Collector, Hardoi, is sitting over the representation for quite some time, thus, in case of any further delay this Court may take serious view and even contemplate to proceed against the District Collector under the law."
Accordingly, it is submitted by Sri T.N. Tiwari, counsel for the petitioner that the impugned action in the instant case is illegal, arbitrary and cannot be sustained under law thus the respondents be directed to include the name of the petitioners in the voter-list and petitioner No. 1 may be permitted to file her nomination for the post of Pradhan in the election in question.
Sri N.C. Mehrotra, learned counsel for the respondent on the other hand submits that the petitioners are entitled for an opportunity of hearing as provided under proviso to Sub-Section 8 of Section 9 of the Act because the same is to be read along with the Section 9(1) and as per the said procedure the petitioners are not entitled for any opportunity whatsoever.
He further submits that in pursuance to the provisions of Section 9 of the Act, read with Rule 21(C) and 21(B) of the Rules, Notification has been issued by the Election Commission, Uttar Pradesh thereby notifying the detailed programme/schedule by which detailed procedure has been laid down e.g. date of publication of the tentative voter-list was fixed as 10th of June, 2010, thereafter different dates were fixed for filing of the objection etc. if any, by a person, aggrieved in respect to the publication of tentative voter-list for hearing and in respect of the same by the competent authority and the date for publication of the final voter-list was fixed as 22nd of July, 2010.
Sri N.C. Mehrotra further submits that as per the instructions received to him, the said procedure has been followed in the present case and if the petitioners have any grievance in respect to the Voter-list (Anenxure-1) they have right to file objection, so within the stipulated period of time as provided under Rule 11 of the Rules and statutory right of appeal under Section 21(A) of the Rules, 1994.
Moreover, in view of the Section 12(C) of the Act petitioner has remedy of filing election petition thus after notification of election programme by the Election Commission on 16th of September, 2010 and circulated by the District Magistrate/Zila Nirvachan Adhikari,Panchayat Sitapur, on 18.09.2010 (a copy of the same has also been filed by the petitioner (SA-1) along with supplementary affidavit) the present writ petition filed by the petitioner is liable to be dismissed.
I have heard the counsel for the parties and gone through the record.
Democracy is a concept, a political philosophy, an ideal practiced by many nations culturally advanced and politically mature by resorting to governance by representative of the people elected directly or indirectly. But electing representatives to govern is neither a 'fundamental right' nor a common right' but a special right created by a statutes, or a 'political right', or privilege and not a natural 'absolute' or vested right.
The act was enacted by the U.P. legislature to establish and develop Local Self-Government in the rural areas of the States and to make better provision for village administration and development. The Act amongst other things makes provision for establishment and constitution of Gram Sabhas and Gram Panchayats, election of Pradhans and Up-Pradhans of Gram Sabhas and members of Gram Panchayats and removal of Pradhans and Up-Pradhans.
By the Constitution (Seventy-third Amendment) Act, 1992 Part IX (Articles 243 to 243-O) has been introduced in the Constitution. The said part contains provision relating to Panchayats at the village intermediate and district levels.
In accordance with the said requirement, the U.P. State Legislature amended the Act by enacting Act 9 of the 1994. As a result of the amendment introduced in the Act 9 of 1994. As a result of the amendment introduced in the Act 9 of the 1994 the Gaon Sabhas have been designated as Gram Sabhas and under Section 3 a Gram Sabha has to be established for a village or group of villages by the State Government by notification.
The Gram Sabha consists of persons registered in the electoral rolls relating to a village comprised within the area of the Gram Panchayat. Under Section 11 F the State Government is required to declare by notification any area comprising a village or group of villages, having as far as practicable, a population of one thousand to be a Panchayat area for the purpose of the Act. Section 12 provides for the constitution of a Gram Panchayat for every Panchayat area.
The Gram Panchayat consists of a Pradhan and nine members where the Panchayat area is having a population of one thousand, eleven members where the Panchayat area is having a population of more than one thousand but not more than two thousand but not more than three thousand and fifteen members where the Panchayat area is having a population of more than three thousand. The election to the office of the Pradhan continues to be held by secret ballot by all the members of the Gram Sabha as laid down in Section 12-A and the Rules known as U.P. Panchayat Raj (Registration of Elector) Rule 1994.
In the instant case, it is not disputed by the counsel for the parties rather admitted that the Election Commission has notified the programme for conducting election in question on 16th of September, 2010, thereafter by order dated 18th of September, 2010 District Magistrate/Zila Nirvachan Adhikari circulated the same by virtue of the said document the detailed procedure for the purpose of holding elections in question i.e. filing of nomination, checking of nomination paper, date for withdrawal, allotment of symbols, date of election, date of voting and date of counting i.e. 30th of October, 2010 etc. have been fixed.
In view of the abovesaid facts, as per the law as laid down by the Apex Court in the case of Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others, (1978) 1 SCC 405:-
"Para 22 "At the first blush we get the comprehensive impression that every calling in question of an election save, at the end, by an election petition, is forbidden. What, then, is an election? What is 'calling in question'? Every step from start to finish of the total process constitutes 'election', not merely the conclusion or culmination. Can the cancellation of the entire poll be called a step in the process and for the progress of an election, or is it a reverse step of undoing what has been done in the progress of the election, a non-step or anti-step setting at nought the process and, therefore, not a step towards the goal and hence liberated from the coils of Article 329(b)? And, if this act or step were to be shielded by the constitutional provision, what is an aggrieved party to do? This takes us to the enquiry about the ambit of Section 100 of the Act and the object of Article 329(b) read with Article 324. Such is the outline of the complex issue projected before us."
Further in the case of Shri Sant Sadguru Janardan Swami Vs. State of Maharashtra, (2001) 8 SCC 509, the Apex Court held as under:-
"In view of our finding that preparation of the electoral roll is being an intermediate stage in the process of election of the managing committee of a specified society and the election process having been set in motion, it is well settled that the High Court should not stay the continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll. It is not disputed that the election in question has already been held and the result thereof has been stayed by an order of this Court, and once the result of the election is declared, it would be open to the appellant to challenge the election of returned candidate, if aggrieved, by means of an election petition before the election tribunal.
Similar view has been reiterated in Tapash Majumder Vs. Pranab Dasgupta, (2004) 13 SCC 574 passed by Division Bench of this Court in Basant Prasad Srivastava Vs. State of U.P. and others, (1994) All CJ 162 has held that it is desirable that the election process should end as early as possible and the declaration of result should not be deferred through interim orders. Any interference with the election process at the intermediate stage under Article 226 of the Constitution of India is not desirable.
Further, Hon'ble the Supreme Court in Pundlik Vs. State of Maharashtra 2006(7) SCC 181 held that the writ Court was justified to hold that once election process commences and is notified with that ordinarily High Court should not interfere under Extraordinary Jurisdiction under Article 226 of the Constitution of India. Hon'ble the Single Judge has also rightly held that the question relating to faulty electoral roll is not a ground for interference.
Moreover two Division Bench of this Court in respect to election under U.P. Cooperative Societies Act and Rules, namely of Sudhir Kumar Sharma Vs. State of U.P. and others 2010 (18) LCD 522 and Lal Bahadur Vs. District Magistrate, Bahraich [2009 (27) LCD 1086] held that the election process started on issuance of the election programme and thereafter if a person has any grievance in respect to the mode of holding of election or rejection of nomination or deletion of name in the voter-list then in that circumstances the writ petition filed by him for the said purpose is not maintainable and he should raise the grievance, if any, by filing an election petition.
Moreover, Section 12 (C) of the Panchayat Raj Act provides a detailed procedure for filing of the election petition. If any person aggrieved in any manner with the holding of the election, further in view of the provisions as provided under Section 12-C(2)(A)(b)(ii) of the Act, which provides (ii) an elector for having voted or refrained from voting. So, The deletion of the name of a person/petitioner in the instant case from a voter-list is a ground to file election petition.
Needless to mention herein that Article 243 (O) of the Constitution of India provides as under:-
"243 O. Bar to interference 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.]"
In view of the abovesaid facts and the law as laid down in this regard by Hon'ble the Apex Court and by this Court, the present writ petition filed by the petitioners is not maintainable at this stage, as such I do not feel it appropriate to adjudicate and decide the other arguments which have been raised by the learned counsel for the petitioner in the instant case.
For the foregoing reasons, the present writ petition is dismissed as not maintainable at this stage because the election programme for conducting the election in question has already been issued/notified by the U.P. State Election Commission.
No order as to costs.
Order Date :- 07.10.2010 Ravi/