JUDGMENT V.K. Shukla, J.
1. Smt. Shyam Dulari Devi who was one of the candidate for the post of Pradhan for Gram Panchayat Bhatgawan has approached this Court substantively for following reliefs:
" (i) Issue a writ order or direction in the nature of Mandamus calling for the records of the impugned election of the office of Pradhan of Gram Panchayat Bhatgawan, P.O. Vijai Kaf, Police Station Ahirali Tehsil Hata, District Kushi Nagar.
(ii) Issue a writ order or direction in the nature of Mandamus commanding the respondent No. 2 to conduct inquiry into the matter on the alleged the complaint dated 18.08.2005 of the petitioner and to take action against the guilty authorities persons in accordance with law.
(iii) Issue an ad interim mandamus not to give effect and operation of the result declared on 29.08.2005 of election of Gram Panchayat village Bhatgawan Post Vijayi Kaf, P.S. Ahirauli Bazar Tehsil Hata, District Kushi Nagar and restrain the respondent No. 4 from administering oath of the office of Pradhan to respondent No. 7 which is scheduled to be held on 2nd September 2005, during the pendency of the writ petition so as to secure the ends of justice."
2. Brief facts of the case as mentioned in the writ petition is that Notification had been issued by the Chief Election Commissioner U.P. at Lucknow on 18.07.2005 regarding holding of Gram Panchayat Elections in the State of U.P. Polling of Gram Panchayat Bhatgawan, District Kushi Nagar was scheduled to take place on 20.08.2005. Petitioner and three others contestant contested for the office of Pradhan of Gram Panchayat Bhatgawan, District Kushi Nagar . It has been stated that village Bhatgawan is located on the extreme border of territorial limits of District Kushi Nagar, with adjoining District Gorakhpur and at a distance of three Kms. there is village known as Sonebarsa Khurd which falls in Tehsil Chauri Chaura, District Gorakhpur. It has further been contended that village Bhatgawan and village Sonebarsa Khurd are thus adjoining villages with common agricultural fields. Election for Gram Panchayat Sonebarsa Khurd, District Gorakhpur was held on 17.08.2005. It has been contended that family of respondent No. 7 Ram Samujh have got their names inserted in the voter lists of 2 or 3 Gram Panchayats simultaneously, namely at Gram Panchayat Bhatgawan, Gram Panchayat Sonebarsa Khurd and Gram Panchayat Ramu Diha. Petitioner has asserted that objections in this respect has been raised. It has been asserted that on 17.08.2005 the petitioner and many other persons openly saw (1) Jai Prakash son of Ram Bilas (2) Smt. Lilawati W/o Jai Prakash (3) Rajeshwar @ Bhola S/o Jai Prakash (4) Smt. Kusmawati @ Rita W/o Rajshwar @ Bhola (5) Chhedi s/o Ram Bilas (6) Shakuntala W/o Chhedi (7) Chandrabhan S/o Ram Bilas (8) Smt. Kaushalya w/o of Chandra Bhan (9) Uma Shankar S/o Ram Bilas and (10) Smt. Vandana W/o Uma Shankar casting their votes in the ejection of Gram Panchayat Sonebarsa Khurd of District Gorakhpur. Petitioner has asserted that when all these person had already casted their votes on 17.08.2005 then they were not at all entitled to cast their votes in election of Gram Panchayat Bhatgawan, District Gorkhpur, which was scheduled for 20.08.2005. In this background on 18.08.2005 application was moved before Election Officer/ Sub-Divisional Magistrate Hata, District Kushi Nagar mentioning therein that all these persons have already exercised their right to cast vote in the election of Gram Panchayat Sonebarsa Khurd, District Gorkhpur on 17.8.2005, as such they should be refrained from casting their votes in the election dated 20.08.2005. Petitioner submits that in spite of complaint being made no action was taken on the same and in the election which was scheduled fixed on 20.08.205 all these persons whose names have been mentioned above participated in the election of Gram Panchayat Bhatgawan, District Kushinagar. After polling was over in the counting there is difference of only three votes and as such said election has been materially affected on account of participation of all these persons, which occasioned failure of justice qua the petitioner. It has been contended that on the basis of result declared oath is scheduled to be admistered on 02.09.2005, as such this Hon'ble Court should come to the rescue of the petitioner.
3. Sri Sant Sharan Upadhyaya, Advocate, appearing on behalf of the petitioner submitted with vehemence that in the present case 10 persons, whose name has been referred to above, had already casted their votes in the election of Gram Panchayat Sonebarsa Khurd, District Gorkhpur on 17.08.2005 then in that event they were not entitled to cast there vote again in the election dated 20.08.2005 qua Gram Panchayat Bhatgawan, District Kushinagar and their participation is clearly in breach of Sub-section (6) of Section 9 of the U.P. Panchayat Raj Act, 1947 which clearly provide that no person shall be entitled to be registered in the electoral roll for more than one Gaon Sabha or more than once in the electoral roll for the same Gaon Sabha and as undisputed position is to the effect that these 10 persons have been enrolled as votes in both Gram Panchayats and have participated in both the election, as such their participation on second occasion has materially affected the election, as such election of Respondent No. 7 Sri Ram Samujh is liable to be set aside and oath is not liable to be administered to him. In this connection he has placed reliance on paragraph 3 & 4 of the Judgment in the case of Sher Singh Budh Singh and Anr. v. The State of Punjab and Ors. for the proposition that if participation of persons is violative of statutory provision then the said election is no election in the eyes of law and result declared qua the same is illegal. Paragraph 3 and 4 of the said judgment is quoted below:
" (3). Now Section 18 of the Representation of the People Act, 1950 which deals with apart from other matters the preparation of electoral rolls, lays down that no person shall be entitled to be registered in the electoral roll for any constituency more than once. It is therefore, obvious that the supplementary roll as prepared in the present case, was illegal. In learned counsel for the respondents has not been able to justify the inclusion or registration of the same voters at more than one place as indeed he could not in view of Section 18 but he has contended strenuously firstly that even if elections were held on these rolls there should be no interference by this Court on the writ side inasmuch as an election petition has already been filed by the petitioners which is pending before the prescribed authority in which identical allegations have been made and secondly even if it is established that the rolls were defective the petitioners cannot succeed unless they show that the result of the election was materially affected thereby. My attention has been invited to Section 13(O) of the Punjab Gram Panchayat(Amendment) Act 1962, which gives the grounds for setting said elections. Clause (d) of Sub-section (1) of Section 13(O) of the Act reads as under:
"(d) that the result of the election in so far it concerns the elected person, has been materially affected-
"The Election Tribunal has no jurisdiction to go behind the electoral roll and decide whether the particular voter has been validly enrolled or not. Jurisdiction of the Election Tribunal at the best extends to the consideration of the validity or otherwise (a) of the acceptance or rejection of the nomination and (b) of the holding of the election. It does not extend to a consideration of the correctness or otherwise of the electoral roll."
This seems to be with respect the correct view and the learned counsel for the respondents has not been able to point to any authoritative decision to the contrary in which any such view has been expressed that it would be open to the prescribed authority in the present case to reject as invalid a vote which has been cast more than once by a voter who has been entered in the register at more than one place and who has voted in accordance with the entries in the register.
(4) The learned counsel for the petitioners has drawn my attention to Lajpat Rai v. Khilari Ram 62 Pun.L R. 377 which is a Bench decision in which it was stated that if from the point of view of the real object and scope of the rules the authorities have exercised their power so unreasonably or capriciously while preparing the rolls in violation of and not under the rules, then the rolls might well be struck down. It, however, does not mean that every defect or irregularity caused by the negligence or inefficiency or breach of rules by the authorities entrusted with preparation of rolls must necessarily invalidate them but the Court should in each case examine the nature and extent of the breach, the circumstances in which it has committed, and then determine whether the roll in question is so imperfect and improper as to invalidate the election held on its basis. In that case the election was actually set aside on the ground that the roll was not valid, having not been prepared in conformity with the Municipal Election Rules, 1952.
This decision was commented upon in full judgment of this Court in Dev Prakash v. Babu Ram, (FB), in which Dulat J. who had agreed with the judgment in the previous case while delivering the judgment in the previous case while delivering the judgment of the Full Bench observed that an election is in its nature an expensive and time-consuming process, and if it is to be disturbed after the whole process has been gone through, there must be shown to have existed some material cirumstance touching the substance of the election and not merely technical breach of a rule. Everybody agrees that if the very foundation of the Election, namely the electoral be allowed to stand, but that does not mean that any kind of defect in the roll, however, technical in its nature will suffice to reach such a conclusion. With regard to the decision in 62 Pun LR 377 distinction was drawn and certain observations were made which according to the learned counsel for the respondents have the effect of overruling the Bench decision, It is not possible to say that the Bench view was overruled, but what was said was that " the present case does not resemble that case, and the whole controversy in the present case is whether the electoral roll can be called illegal because this preliminary roll, to which objections where invited was partly prepared before the direction of the State Government for such preparation was received or because the existing Assembly roll was adopted as its basis"
It does not follow therefor, that the previous decision was overruled. On the other hand, it obvious from the observations, to which reference has already been made, that if the electoral roll is illegal no election on its basis can proceed or be allowed to stand. It will necessarily depend on the facts of each case whether the roll is illegal. It is clear that the supplementary roll in the present case was prepared in a wholly illegal manner, inasmuch as the names of a large number of voter were entered at more than one place, which constitutes a clear violation and contravention of Section 18 of the Representation of the People Act 1950. I am therefore, satisfied that the election held on the basis of such roll where altogether invalid and the mere fact that the election petition is pending will not constitute a bar to the grant of appropriate relief in the present writ petition. As it has been held by me that the Tribunal is not entitled or empowered to go into the question of illegality or illegal preparation of the rolls it is open to this Court to interfere in exercise of powers conferred by Article 226. In the result this petition is allowed and the election of respondent No. 3 as Sarpanch is hereby quashed."
4. Learned Standing Counsel on the other hand contended that this Hon'ble Court has no authority to entertain the present writ petition and not to interfere in the election proceeding in view of specific bar being imposed by the Constitution by means of Article 243O(b) which provides that no election to any Panchayats 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 and as such writ petition be dismissed.
5. In order to appreciate respective arguments which have been advanced, Article 243O of the Constitution of India and Section 9(6), 9(7), 9(8) and Section 12C of U.P. Panchayat Raj Act 1947 are to be looked into:
"243-O- Bar to interference by Courts in election matters- Notwithstanding any thing 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 Panchayats 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.
U.P. panchayat Raj Act, 1947 Section 9(6)- No person shall be entitled to be registered in the electoral roll for more than one Gaon Sabha or more than once in the electoral roll for the same Gaon Sabha.
Section (7)- No person shall be entitled to be registered in the electoral roll for any Gaon Sabha, if his name is entered in any electoral roll pertaining to any city, municipality, notified area, cantonment or town area unless he shows that his name has been struck of such electoral.
Section (8)- Where the Electoral Registration Officer is satisfied, after making such inquiry as he may deem fit, whether on an application made to him or on his 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, he shall subject to the provisions of this Act and rules and orders made thereunder and such general or special directions, if any, as may be given in this behalf by the Nirvachan Nideshak (Panchayat), correct, delete or add the entry as the case maybe:
Provided that no such correction, deletion or addition shall be made after the last date for making nominations for Ian election in the Gaon Sabha 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 heard in respect of the action proposed to betaken in relation to him.
Section 12 C:- Application for questioning the elections-(l) 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 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 ground that -
(a) the election has not been free election by reason that the corrupt practice of briber/ or undue influence has extensively prevailed at the election or
(b) that the result of the election has been materially affected-
(i) by the improper acceptance or rejection of any nomination or
(ii) by gross failure to comply with the provisions of this Act the rules framed thereunder (2) The following shall be deemed to be corrupt practices of bribery undue influence for the purposes of this Act.
(A) Bribery that is to say, any gift, offer or promise by a candidate or by any other person with the connivance of a candidate of a gratification to any person with the connivance of a candidate of gratification to any person whomsoever with the object directly indirectly of including-
(a) a person to stand or not to stand as, or withdraw from being a candidate at any election; or
(b) an elector to vote or refrain from voting at an election or as reward to.
(i) a person for having so stood or not stood or have withdrawn his candidature or
(ii) an elector for having voted or refrained from voting.
(B) Undue influence that is to say, any direct or in direct interference of attempt to interfere on the part of a candidate or of any other person with the connivance of the candidate with the free exercise of any electoral right:
provided that without prejudice to the generality of the provisions of the clause any such person as is referred to therein whomsoever
(i) thereatens any candidate, or any elector or any person in whom candidate or any elector is interested with injury of any kind including social ostracism and excommunication or expulsion from any caste or community; or
(ii) induces or attempts to induce a candidate or an elector to believe that he or any person whom he is interested will become or will be rendered an object of divine displeasure or spiritual censure shall be deemed to interfere with the free exercise of the elections right of such candidate or elector within the meaning of this clause.
(3) The application under Sub-section (1) may be presented by any candidate at the election or any elector and shall contain such particulars as may be prescribed.
6. In the present case electoral roll has been finalized for Gram Panchayat Sonebarsa Khurd District Gorakhpur and for Gram Panchayat Bhatgawan District Kushinagar. It is true that there is duplicacy of the names in the electoral roll which has been prepared for the said Gram Panchayats. Sub-Section (6) of Section 9 of U.P. Panchayat Raj Act 1947 clearly provides that _no person shall be entitled to be registered in the electoral roll for more than one Gaon Sabha or more than once in the electoral roll for the same Gaon Sabha. Sub-section (7) of Section 9 of U.P. Panchayat Raj Act 1947 provides that no person shall be entitled to be registered in the electoral roll for any Gaon Sabha, if his name is entered in any electoral roll pertaining to any city, municipality, notified area, Cantonment or town area unless he shows that his name has been struck off such electoral roll. Sub-section 8 of Section 9 of U.P. Panchayat Raj Act 1947 vests Electoral Registration Officer with the authority to correct the electoral roll but a proviso has been added therein which provides that no such correction , deletion or addition shall be made after the last date for making nominations for an election in the Gaon Sabha and before the completion of that election. Thus, as per this provision once if the name of any person has been illegally inserted in the electoral roll mid way during the election process same cannot be corrected, and that to without providing any opportunity of hearing Idea behind insertion of this provision is that once election process has commenced then same should not be interfered with.
7. Here in the present case version given by the petitioner that name of these persons finds place at both the places in both the electoral list of Gram Panchayat Sonebarsa Khurd, Gorkhpur and Gram Panchayat Bhatgawan, Kushinagar is correct and in view of sub-section(6) of Section 9 of U.P. Panchayat Raj Act 1947 said names can stand many one of the list and not in both the list.
8. Petitioner has contended that these ten persons have participated in both the elections dated 17.08.2005 and 20.08.2005 respectively. As to whether these ten persons have participated, at both the places or not is essentially a question of fact which could be determined only after evidence is lead in this respect.
9. At this juncture the decision of the Hon'ble Apex Court in the case Election Commission of India v. Ashok Kumar 2000 (5) SCC 216 is being looked into, where in the context of Article 329(b) qua exercise of power under Article 226 has been extensively dealt with and it has been mentioned that words "no election shall be called in question" in the body of Article 329(b) is the determinative test of attracting aforementioned Article 329(b) and if the petition presented to the Court "calls in question an election" the bar is to the attracted else it is not. Relevant portion of the aforesaid judgement is being quoted below. Paragraphs 28 to 32 is being reproduced for ready reference.
" 28. Election dispute are not just private civil dispute between two parties. Though there is an individual or a few individuals arrayed as parties before the court but the stakes of the constituency as a whole are on trial. Whichever way the list terminates it affects the fate of the constituency and the citizens generally. A conscientious approach with overriding consideration for welfare of the constituency and strengthening the democracy is called for. Neither turning a blind eye to the controversies which have arisen nor assuming a role of overenthusiastic activist would do. The two extremes have to be avoided in dealing with election disputes.
29. Section 100 of the Representation of the People act 1951 needs to be read with Article 329(b) the former being a product of the latter. The sweep of Section 100 spelling out the legislative intent would assist us in determining the span of Article 329(b) though the fact remains that any legislative enactment cannot curtail or override the operation of a provision contained in the Constitution. Section 100 is the only provision within the scope of which an attack on the validity of the election must fall so as to be a ground available for avoiding an election and depriving the successful candidate of his victory at the polls. The Constitution Bench in Mohinder Singh Gill ( Vide SCC p. 429 para 33) asks us to read Section 100 widely as "covering the whole basket of grievances of the candidates." Sub Clause (IV) of Clause (d) of Sub-section (1) of Section 100 is a "residual catch all clause". Whenever there has been non-compliance with the provisions of the Constitution or of the Representation of the People act 1951 or of any rules or Orders made thereunder if not specifically covered by any other preceding clause or sub-clause of the section it shall be covered by sub-clause (IV). The result of the election insofar as it concerns a returned candidate shall be set aside for any such non-compliance as the abovesaid subject to such non-compliance, also satisfying the requirement of the result of the election having being shown to have been materially affected insofar as a returned candidate is concerned. The conclusions which inevitably follow are in the field of election jurisprudence, ignore such things as do not materially affected the result of the election unless the requirement of satisfying the test of material effect has been dispensed with the law; even if the law has been breached and such breach satisfies the test of material effect on the result of the election of the returned candidate yet postpone the adjudication of such dispute till the election proceedings are over so as to achieve in larger public interest the goal of constituting a democratic body without interruption or delay on account any controversy confined to an individual or group of individuals or single constituency having arisen and demanding judicial determination.
30. To what extent Article 329(b) has an overriding effect on Article 226 of the Constitution? The two Constitution Benches have held that Representation of the People Act 1951 provides for only one remedy; that remedy being by an election petition to be presented after the election is over and there is no remedy provided at any intermediate stage. The non obstante clause with which Article 329 opens, pushes out Article 226 where the dispute take the form of calling in question an election (see Para 25 of the Mohinder Singh Gill case) The provisions of the Constitution of the Act read together do not totally exclude the right of a citizen to approach the court so as to have the wrong done remedied by invoking the judicial forum nevertheless the lesson is that the election rights and remedies are statutory, ignore the trifles even if there are irregularities or illegalities, and knock the doors of the courts when the election proceedings in question are over. Two pronged attach on anything done during the election proceedings is to be avoided. One during the course of the proceedings and the other at its termination for such two pronged attack, if allowed, would unduly protract or obstruct the functioning of democracy.
31. The founding fathers of the Constitution have consciously employed use of the words " no election shall be called in question' in the body of Section 329(b) and these words provide the determinative test for attracting applicability of Article 329(b). If the petition presented to the Court "calls in question an election' the bar of Article 329(b) is attracted. Else it is not.
32. For convenience sake we would now generally sum up out conclusion s by partly restating what the two Constitution Bench have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove:
(1)if an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have have the effect of interrupting obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in election.
(2)Any decision sought and rendered will not amount to "calling in question an election" if it sub serves the progress of the election and facilitates the completion of the election. Anything done towards competing or in furtherance of the election proceedings cannot be described as questioning the election.
(3) subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the wall settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.
(4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the court has been sought for merely to correct or smoothen the progress of the election proceedings to remove the obstacles therein or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the court.
(5)The court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the court's indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the court would act with reluctance and shall not act, except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material".
10. Article 243O(b) of the Constitution of India clearly mentions that no election for any Panchayats 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 made by the Legislature of a State. State Legislature has already framed U.P. Panchayat Raj Act 1947 providing therein forum in the shape of Section 12-C and also providing ground of challenge on which election petition can be filed. Election petition can be filed on the ground that same has not been a free election by reason that corrupt practice of bribery or undue influence has extensively prevailed at the election or that the result of the election has been materially affected by the improper acceptance or rejection of any nomination paper and by gross failure to comply with the provisions of this Act and Rules framed thereunder.
11. Here in pith and substance petitioner grievance is that under Sub-section (6) of Section 9 of U.P. Panchayat Raj Act 1947 the said 10 persons were not entitled to be registered in the electoral roll of two separate Gram Panchayats , as such their participation in the election on subsequent occasion on 20.5.2005 on the basis of name being inserted in the electoral roll of Gram Panchayat Bhatgawan, District Kushinagar is bad. Thus, petitioner is complaining participation of all these persons in violation of provision as contained under sub-Section (6) of Section 9 of U.P. Panchayat Raj Act 1947. As violation of sub-Section (6) of Section 9 of U.P. Panchayat Raj Act 1947 is being complained of the same can be valid ground for questioning validity of election under Section 12-C of U.P. Panchayat Raj Act 1947 which clearly mentions that election can be questioned on the ground that result of the election has been materially affected by the improper acceptance or rejection of any nomination or by gross failure to comply with the provisions of this Act and Rules framed thereunder. Thus, the ground which has been sought to be raised in the present writ petition by pleading can be raised in the election petition, that election has been materially affected by gross failure to comply with the provisions of the Act. The prayer made in the writ petition, clearly reflects that same clearly falls within the category of questioning the elections of Panchayat, and the moment election is questioned, constitutional embargo placed upon Courts, comes into play, and courts authority under Article 226 is pushed out, on account of the express language used in Article 243O(b) which starts with non obstante clause. There being Constitutional prohibition imposed for entertaining proceedings except by way of election petition/this Court under Article 226 of the Constitution of India cannot usurp power of Election Tribunal constituted under Section 12-C of U.P. Panchayat Raj Act 1947.
12. Now coming to the judgement which has been cited by the petitioner in the case of Sher Singh Budh Singh and Anr. v. The State of Punjab and Ors. , it is reflected that in the said case Hon'ble Court interfered with the matter, as in the opinion of the Court, election Tribunal had no authority to go into the question of illegality or legality of preparation of rolls, and it was open to Court to interfere under Article 226 of Constitution of India, and further elections held on the basis of illegal roll is of no consequence. The said Judgement will not come to the rescue of the petitioner for the reasons, that under Section 12-C of U.P. Panchayat Raj Act, 1947, scope of questioning the validity of election is very wide as compared to the provisions of Section 13-O of Punjab Gram Panchayat (Amendment) Act 1962. Under Section 12-C if elections have been materially effected for gross failure to comply with the provisions of U.P. Panchayat Raj Act 1947 and Rules framed thereunder, the same can be valid ground for setting aside of elections. Electoral roll is prepared in consonance with the provision as contained under Section 9 of U.P. Panchayat Raj Act 1947 read with U.P. Gaon Sabha Electoral Registration Order 1978, framed by State Government in exercise of power vested under Sub-section (11) of Section 9 of U.P. Panchahyat Raj Act, 1947, and in case there has been gross failure to comply with the provision of the Act and the rules in preparation of the same which has materially effected the election, the Election Tribunal is fully competent to go into this question. Apart from this at the point of time, when aforementioned Judgement had been delivered, there was no provision like Article 243O(b) prohibiting the courts from entertaining petitions under Article 226 of the Constitution of India and according requisite relief. As on date constitutional embargo is staring on the face of it and present case does not fall in the category of exceptions wherein power under Article 226 could be invoked. Apart from this, at this juncture Judgement of Hon'ble Apex Court in the case of Shri Sant Sadguru Janardan Swami (Moingri Maharaj) Sahkari Dugdha Utpadak Sansth and Anr. v. State of Maharashtra and Ors. be also looked into , wherein it has been held that preparation of electoral roll being an intermediate stage in the process of election of the Managing Committee., High Court should not stay continuation of the election process, even if there may be some illegality. Relevant paragraph 12 is being quoted below:-
"In view of our finding that preparation of electoral roll is being an intermediate state 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 there of 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:
13. Consequently in the light of the aforementioned discussion present writ petition is not maintainable. Remedy of petitioner lies by filing election petition before Prescribed Authority under Section 12C of U.P. Panchayat Raj Act 1947. In case any election petition is filed then endeavour shall be made by Prescribed Authority to conclude the hearing of the same preferably within period of one year, subject to cooperation being extended by the parties, without granting any unnecessary adjournment.
14. With the above direction present writ petition is dismissed on the ground of alternative remedy of election petition.
15. No orders as to cost.