This application under Order XLI Rule 21 of Code of Civil Procedure read with Chapter IX Rule 17 (2) of Allahabad High Court Rules, has been filed for setting aside the order/judgement passed by this Court on 17.8.2016 in the present first appeal.
Having regard to the nature of dispute involved in the First Appeal being a pure question of law, the Court proceeded to decide the same by remitting the matter back to the court below for consideration of the issue of limitation afresh by putting the parties to a notice in the light of observations made. In effect, none of the parties was put to any prejudice insofar as the rule of opportunity is concerned. The application for setting aside the ex-parte judgement is also not questioned on any such prejudice being caused but a legal question as to the very maintainability of first appeal against an order passed under Section 27 of the U.P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961, has been raised in the application seeking to recall/ set aside the order so passed.
Sri H.G.S. Parihar, learned Senior Counsel, assisted by Smt. Meenakshi Parihar Singh has put forth an interesting argument in the light of Section 27 of U.P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 and the Court hastens to reproduce the same as under:
"27. Disputes as to membership or disqualification--
(1) 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.
(2) If a dispute arises as to whether a person--
(a) has been lawfully chosen a member of a Zila Panchayat under Section 18; or
(b) has ceased to remain eligible for being chosen a member of of the Zila Panchayat for the purposes of Section 20; or
(c) has become disqualified to be Adhyaksha for the purposes of Section 19, the dispute shall be referred in the manner prescribed to the Judge whose decision shall be final and binding."
On the premise of aforesaid provision, it is urged that the election petition was admittedly filed by the appellant under Section 27 but a proceeding contested under Section 27 on a decision being rendered, attains finality and such a decision is not amenable to appellate jurisdiction of this Court by virtue of Rule 47 of the U.P. Zila Panchayats (Election of Adhyaksha and Up-Adhyaksha and Settlement of Election Disputes) Rules, 1994, which conceives the appeals to be filed against the orders passed under Rule 40 of the said rules. In other words, the decision rendered under Section 27 (2)(c) by the competent judge is final.
It is alternatively urged that the election petition filed by the appellant even if maintainable under Rule 33 of the aforesaid rules but having been admittedly filed under Section 27 of the Adhiniyam, 1961, has led to framing of an issue to this effect i.e. issue no. 3 before the competent court which remains yet to be considered and once the issue of limitation raised in the First Appeal is remitted to be considered afresh, the issue no. 3 as to the maintainability of the election petition under Section 27 (2) (c) be also directed to be decided as a preliminary issue.
On a close scrutiny of the submission advanced before this Court, it is noticed that a rigid construction of Section 27 (2) (c) of the Adhiniyam, 19061 in a manner in which argument has been placed, there does not seem to be any scope for entertaining an election petition within the scope of Section 27 (2) (c) and consequently, the entire Chapter IV of the statutory rules becomes redundant for the simple reason that Chapter V of the statutory rules being relatable to Section 27 (2)(c) does not provide for an appeal against an order passed, rather it stipulates the decision under Section 27 (2) (c) to be final. Moreover, Rule 40 and Rule 47 contained in Chapter IV by virtue of Rule 50 do not apply to the disputes raised under Section 27 (2) (c) read with Rule 48.
Dr. L.P. Misra, learned counsel appearing for the appellant while placing the same provision of the Act, has argued that the remedy for an election petition as well as for a petition of disqualification in respect of an Adhyaksha of Zila Panchayat is conceived under Section 27 (2) (c) in reference to Section 19 of the Act which clearly postulates two situations; one arising out of the invalidation of an election and the other a situation of disqualification incurred during currency of the term. When a disqualification is incurred as a result of invalidation of election, the proceedings of election petition are to be read in Section 27 (2) (c) which would follow in the manner of procedure prescribed under Chapter IV of the Rules. The distinguishing feature of such a proceeding lies in the fact that a contesting candidate to the office of Adhyaksha would alone file an election petition within the period of limitation as prescribed under Rule 33 and such a petition would be decided by following the procedure contained in Chapter IV of the rules. Any order passed on an election petition would be an order under Rule 40 and subject to the appellate jurisdiction of this Court vested by virtue of Rule 47. On the other hand, if a petition alleging disqualification against the Adhyaksha of Zila Panchayat is filed on any other ground except invalidation of election, the same would be filed under the same provision i.e. Section 27 (2) (c) of the Adhiniyam but the procedure that would be followed is contained under Chapter V of the rules as aforesaid.
It is also pointed out that once a Division Bench of this Court had relegated the matter for being taken up in an election petition vide judgement 12.1.2016 passed in Writ Petition No. 74 (MB) of 2016, the appellant being entitled to avail the remedy of election petition before the competent court has rightly filed the election petition under Section 27 (2) (c), as such, the objections raised on this score before the competent court being still open to be considered does not cause any prejudice to the applicant on the basis of which the judgement rendered by this Court may be set aside or recalled.
The rival contentions made before this Court call for an interpretation of Section 27 (2) (c) of the Adhiniyam in relation to the remedy available to a contesting candidate for the office of Adhyaksh, Zila Panchayat in the event of being aggrieved and the availability of the remedy of appeal under Rule-47 of the Rules framed thereunder.
Before dealing with the statutory provisions, it is needful to refer to the constitutional provisions contained in Chapter IX of the Constitution of India. Article 243-B provides for constitution of the Panchayats which reads as under:
"243B. Constitution of Panchayats :
(1) There shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of this Part (2) Notwithstanding anything in clause ( 1 ), Panchayats at the intermediate level may not be constituted in a State having a population not exceeding twenty lakhs."
Article 243-O further contemplates a bar to interfere by court in electoral matters and for ready reference the same is reproduced hereunder:
"Article-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."
It is amply clear from the constitutional provisions extracted above that the State Government is under an obligation to constitute Panchayats and once the Panchayats are constituted, no court shall interfere in the constitution of Panchayat except by an election petition to such authority and in such manner as is provided for by or under any law made by the State legislature. The constitutional mandate to provide for an authority and manner by the State legislature is specific.
Article 243-N also provides that the existing laws insofar as they are inconsistent with Chapter IX shall continue to be in force until amended or repealed but not beyond a period of one year from the date of promulgation and enforcement of the seventy-third amendment in the Constitution. In pursuit of the constitutional scheme under Chapter IX, the State legislature insofar as the U.P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 is concerned, some new provisions were inserted in the year 1994 which include Section 264-B and being relevant, the same is extracted below:
"264-B. Manner and conduct of election.-(1) The election to the office of an Adhyaksha or a member of a Zila Panchayat and a Pramukh, or a member of a Kshettra Panchayat shall be held by secret ballot in the manner provided by rules which shall also provide for resolution of doubts and disputes relating to the election of such Adhyaksha and Pramukh.
(2) The superintendence, direction and control of the conduct of election of the office of an Adhyakasha or a member of a Zila Panchayat and of a Pramukh or a member of a Kshettra Panchayat shall vest in the State Election Commission.
(3) Except as provided in sub-section (4), the State Government shall, in consultation with the State Election Commission, by notification, appoint the date or dates for general election of the Adhyaksha or members of a Zila Panchayat or the Pramukh or members of a Kshettra Panchayat.
(4) The State Election Commission shall, in consultation with the State Government, by notification, appoint date or dates for bye election of the Adhyaksha, Upadhyaksha or members of a Zila Panchayat or Pramukh or members of a Kshettra Panchayat."
After promulgation of the above provision by U.P. Act No. 9 of 1994, the statutory rules with respect to the settlement of disputes in relation to members and Adhyaksha & Up-Adhiyakshas were framed under Section 237 of the Adhiniyam which requires the statutory rules to be laid before each House of the State Legislature before its publication.
The rules notified on 1.4.1995 relevant for the purpose as mentioned above, were framed under Section 237 read with Section 27 (2) (c) and Section 264-B of the Adhiniyam.
Once from the scheme of legislation, it is clear that rules were framed under Section 27 (2) (c) read with Section 264-B of the Adhiniyam, 1961, Chapter IV of the Rules becomes relatable to Section 27 (2) (c) read with Section 264-B, whereas Chapter V of the Rules remains relatable to Section 27 (2) (c) of the Act. Any order passed under Section 27 (2) (c) read with Chapter V of the Rules is final and would not be appealable, whereas once an election petition is filed under Section 27 (2) (c) read with Section 264-B, Chapter IV of the Rules would become applicable and the issues shall be decided accordingly. In the light of aforesaid discussion, I am of the considered opinion that insofar as a decision on a preliminary issue rendered in an election petition is concerned, an appeal is maintainable before this Court under Rule 47, as such, the order passed by this Court on 17.8.2016 does not suffer from lack of jurisdiction.
Having discussed the legal provision as above, it is apt to consider the arguments raised by the learned counsel for the parties in the context of judgement passed by the District Judge, which gave rise to the First Appeal. From the judgement passed by the District Judge, it is clear that issues no. 3 and 4 are in the nature of preliminary issues. Issue no. 3 is curable whereas issue no. 4 once established would culminate into rejection of the plaint/petition.
This Court by means of the judgement dated 17.8.2016 has remitted the matter on the question of limitation and has not precluded the court below to consider any other issue as a preliminary issue if the same can otherwise be legally treated so and decided. Therefore, the alternative submission put forth by Sri H.G.S. Parihar, Senior Counsel that issue no. 3 may also be considered and decided as a preliminary issue does not seem to be unjust while pressing this application.
Accordingly, this Court having regard to submissions put forth, declines to entertain the application filed under Order XLI Rule 21 read with Chapter IX Rule 7 of the High Court Rules with the clarification that preliminary issue, apart from limitation, if any, may also be considered and decided by the court below in terms of the judgement passed on 17.8.2016. The application is disposed of in terms of the clarification made above, however, it is expected that the court below shall adhere to the direction already issued.
No order as to cost.
Order Date :- 2.9.2016 Fahim/-
Application No. 84062 of 2016 In re:
Case :- FIRST APPEAL No. - 79 of 2016 Hon'ble Attau Rahman Masoodi,J.
The application is disposed of vide order of date, on separate sheets.
Order Date :- 2.9.2016 Fahim/-