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1961 DIGILAW 92 (ALL)

Sukhdev Singh v. Nirdeshak Panchayat Raj U. P. Lucknow

1961-04-21

D.S.MATHUR

body1961
JUDGMENT D. S. Mathur, J. - This is a petition under Article 226 of the Constitution of India by Sukhdeo Singh for the issue of a writ of mandamus directing the respondents not to interfere with the petitioner's right to function as Pradhan of the Gaon Sabha of Gulariya Bithra, Tahsil and district Pilibhit, and also to direct them not to give effect to the orders of the Nirvachan Nirdeshak (Panchayat), U.P. Lucknow respondent No. 1, whereby the election of the petitioner as Pradhan was set aside and repoll was ordered. 2. The facts of the case are not in dispute, though, of course, the case of the respondents is that the Nirvachan Nirdeshak (Panchayat) had acted properly in accordance with the law. 3. There were only three candidates for election to the office of the Pradhan of the above Gaon Sabha, namely, the present petitioner, and Karnail Singh and Charan Singh, respondent Nos. 4 and 5. Their nomination papers were declared valid, and on 28-1-1961 the polling took place. Votes were counted on 30-1-1961, and as the petitioner had secured 15 more votes than the next candidate, he was declared duly elected, and he took the oath of office as required by Sec. 12-E of the U.P. Panchayat Raj Act, 1947, on 12-2-1961. On 27-1-1961, a day before the poll, Karnail Singh moved an application before the District Magistrate of Pilibhit alleging that the petitioner was likely to do some illegal act in connection with the voters list. He also approached Sri Ajai Singh, Assistant Panchayat Raj Officer. It appears that Sri Ajai Singh held an inquiry on 28-1-1961 and a report was submitted to the Nirvachan Nirdeshak (Panchayat), U.P. Lucknow, whereupon he set aside the result of the election and directed a report on the ground that an additional list of 110 persons had been wrongly added to the Register of members, that is, the voters list. It is this order of the Nirvachan Nirdeshak (Panchayat) which has been challenged in the present proceeding. 4. The other respondents to the petition are the District Magistrate, Pilibhit, respondent No. 2 and Nirvachan Adhikari, Amriya, district Pilibhit, respondent No. 3. They are formal parties. Respondent Nos. 1 to 3 filed one counter-affidavit, while Karnail Singh, respondent No. 4, another. 5. 4. The other respondents to the petition are the District Magistrate, Pilibhit, respondent No. 2 and Nirvachan Adhikari, Amriya, district Pilibhit, respondent No. 3. They are formal parties. Respondent Nos. 1 to 3 filed one counter-affidavit, while Karnail Singh, respondent No. 4, another. 5. Only two points for consideration in the present proceeding are : whether the Nirvachan Nirdeshak (Panchayat), respondent No. 1, had the power to quash the result of the election and to direct a repoll, and if his order can be quashed by this Court. 6. The U.P. Panchayat Raj Act was amended under U.P. Panchayat Raj (Amendment) Act, 1960, whereby substantial changes were made in the Act and the Nirvachan Nirdeshak (Panchayat) was given the power of superintendence and also the power to set aside or modify any order or declaration relating to the election of members of Gaon Panchayats and of Pradhans of Gaon Sabhas where the declaration was made and an order passed without jurisdiction or in violation of any provisions of the Act or rules made thereunder. This provision is contained in Sec. 12-BB of the Act. Prior to the amendment it was the membership of the Gaon Sabha under Section 5 of the Act which determined the right of vote, that is, persons who could participate in the election of, in the present case, the Pradhan of the Gaon Sabha. Sec. 9 (2) has now been incorporated which lays down, in substance, that no person whose name is not entered in the Register of members shall be entitled to vote at any election or in any other proceeding under the Act or the rules framed to any office in the Gaon Sabha, Gaon Panchayat or Nyaya Panchayat. In other words, therefore, the entries existing in the Register of members could not be challenged after the election, that is, by moving an application under Sec. 12-C of the Act. There was a possibility of the Register of members not being correctly maintained, may be intentionally or by negligence or inadvertence. It was, therefore necessary to give powers to a responsible authority to set aside or modify the result of the election, if it appeared that the subordinate officers or the office-bearers of the Gaon Sabha etc. had acted improperly while preparing the Register of members. It was, therefore necessary to give powers to a responsible authority to set aside or modify the result of the election, if it appeared that the subordinate officers or the office-bearers of the Gaon Sabha etc. had acted improperly while preparing the Register of members. There may be other matters which cannot be challenged in an election petition under Sec. 12-C of the Act and these matters, if not corrected are likely to cause heart burning and dissatisfaction in the rural area. Such matters also required being set right by a senior responsible authority. It must, therefore, be said that the legislature acted wisely by incorporating Sec. 12-BB in the Act so that elections may be held fairly and without anyone in authority acting in an unfair method. 7. However, Sec. 12-BB has been worded generally to give unlimited powers to the Nirvachan Nirdeshak (Panchayat), and it has to be considered whether he can exercise the powers similar to those which have been conferred in, as one may say, the Election Tribunal under Sec. 12-C of the Act. Sec. 12-BB runs as below: - "All elections (including bye-elections and nominations) of members of Gaon Panchayats, and of Pradhans of Gaon Sabhas shall be conducted under the supervision and control of the Nirvachan Nirdeshak (Panchayat), who may also set aside or modify any order or declaration relating to such election passed or made without jurisdiction or in violation of any provision of this Act or the rules made thereunder by any officer or official entrusted with duties relating to the conduct of such election." It will be found that the Nirvachan Nirdeshak (Panchayat) has been given the power to set aside or modify any order or declaration relating to such election passed or made without jurisdiction or in violation of any provision of this Act or the rules made thereunder by any officer or official entrusted with duties relating to the conduct of such election. One of the grounds for questioning the election of the Pradhan of a Gaon Sabha or a member of Gaon Panchayat by making an application under Sec. 12-C is, as laid down in Sec. 12-C (1) (b) (ii) that the result of the election has been materially affected by gross failure to comply with the provisions of this Act or the rules framed thereunder. Except that in Sec. 12-C the word "gross failure" has been used in place of simple failure or violation of the provisions of the Act and the rules, the corresponding provisions contained in Secs. 12-BB and 12-C are the same. If Sec. 12-BB is given a wide meaning, it shall be possible for the Nirvachan Nirdeshak (Panchayat) to exercise jurisdiction which has been conferred exclusively in Tribunal to be constituted under Sec. 12-C of the Act. Sec. 12-C clearly lays down that the election of a person shall not be called in question except by an application presented to the prescribed authority within such time and in such manner as may be prescribed, and the election can be challenged on the only grounds detailed in the section. It will thus be found that the legislature made a pro-provision in Sec. 12-BB by giving wide powers of superintendence and control over the election to the Nirvachan Nirdeshak (Panchayat) and in a subsequent Sec. 12-C laid down in clear words that the election of a Pradhan or member of the Gaon Panchayat could not be challenged except by an application under this section and on the grounds detailed therein. One of the rules of interpretation of statutes is that where self-conflicting provisions exist in the same enactment the latter provisions shall prevail. Another rule of interpretation is that the Courts should try to adopt that view which will not make any of the provisions redundant, that is, to try to harmonise the various provisions and to lay down the law which can be said to have been the intention of the legislature. 8. When the legislature clearly provided that the election of a Pradhan can be challenged only in the manner laid down in Sec. 12-C, it cannot be held that the Nirvachan Nirdeshak (Panchayat) could exercise such powers suo motu or on the application of any person. Before the incorporation of Section 9 (2) of the Act no occasion could ordinarily arise for the Nirdeshak (Panchayat) under Sec. 12-BB of the Act. In exceptional cases it may not have been possible for the authority entertaining the application under Sec. 12-C to rectify any mistake committed by any officer or official entrusted with duties relating to the conduct of such election. Such mistakes would have remained unrectified with the result that the injustice could be done. In exceptional cases it may not have been possible for the authority entertaining the application under Sec. 12-C to rectify any mistake committed by any officer or official entrusted with duties relating to the conduct of such election. Such mistakes would have remained unrectified with the result that the injustice could be done. Illegal orders passed by such officers or officials can now be set right by the Nirvachan Nirdeshak (Panchayat) under Sec. 12-BB of the Act. 9. On the application of the above rules it must be held that the Nirvachan Nirdeshak (Panchayat) cannot exercise the jurisdiction vested in the authority competent to hear an application under Sec. 12-C for challenging the result of the election, but subject to this restriction he can exercise the power of superintendence and control and in exercise of such power can set aside or modify any other order or declaration relating to such election passed or made without jurisdiction or in violation of the provisions of the Act and the rules made thereunder. 10. In this connection it was contended on behalf of the petitioner that after an election had been held on the basis of a Register of members, the Nirvachan Nirdeshak (Panchayat) could not, in view of Section 9 (2) of the Act, set aside the result of an election on the ground that the Register of members had not been properly prepared and consequently after modification of the Register could not direct a repoll. This contention has, in my opinion, no force. We shall have to presume that the legislature had some object in mind in making a law, which, in the present case, was to safeguard that no one commits any fraud or intentionally commits an illegality in the preparation of the Register of members. As already indicated above, it is possible that the office-bearers with the connivance of officials entrusted with duties relating to the conduct of the election may intentionally prepare an incomplete Register of members so that persons whose names were not entered in the Register may not be in a position to cast their votes and thus the members of the rival party may not be successful in having themselves elected in the next election. If the Register of members once prepared cannot be modified by the Nirvachan Nirdeshak (Panchayat) the mischief done cannot be undone. If the Register of members once prepared cannot be modified by the Nirvachan Nirdeshak (Panchayat) the mischief done cannot be undone. If the Nirvachan Nirdeshak (Panchayat) has the power to modify the Register of members before the election he can in view of the general provision contained in Sec. 12-BB pass a similar order after the election. The only difference is that before the election the persons interested in challenging the order of the Nirvachan Nirdeshak (Panchayat) shall be the members whose names were entered in the Register or whose names were being deleted. All the members of the Gaon Sabha may also be said to be interested parties, in the sense that they have the right to make an objection to the inclusion of the names in the Register of members or to the exclusion of any name. But after the result of the election has been declared, the person declared to have been elected becomes the main interested party who shall invariably challenge the order of the Nirvachan Nirdeshak (Panchayat) whereby the Register of members is modified. 11. Any direction given or order passed by the Nirvachan Nirdeshak (Panchayat) with regard to the Register of members prior to the holding of the election may in certain circumstances be deemed to be purely administrative such that it cannot be questioned before the Courts of law, neither in a regular suit nor under Article 226 of the Constitution of India, e.g., if the Nirvachan Nirdeshak (Panchayat) cancels the Register of members already prepared and directs that another Register shall be prepared, it is more or less an administrative order by which no one can be adversely affected as the new Register of members shall be finalised after persons interested are given an opportunity to file an objection. But if the Nirvachan Nirdeshak (Panchayat) passes an order by which another Register of members is finalised without the parties having an opportunity to challenge the entries made therein, such persons can say that their right to vote, though given under the law, has been taken away and they could not be deprived of such a legal right except in accordance with the law. Such persons must be given an opportunity to give their version before their names are removed. Persons can also challenge the new names if added to the Register of members. Such persons must be given an opportunity to give their version before their names are removed. Persons can also challenge the new names if added to the Register of members. Similarly, after the result of election has been declared a new interested party, namely, the elected person, has the right to say that he should be given an opportunity of being heard in the sense that he should be given an opportunity to put forward his version before the result of election is set aside after modification of the Register of members. If no such opportunity is given to persons interested against whom the order is being passed, that would be a clear case of violation of the principles of natural justice. It will not be necessary for the Nirvachan Nirdeshak (Panchayat) to hold an inquiry in the manner a Judicial Tribunal does. What is necessary is that the person against whom an order is being passed should have an opportunity of putting forward his version and thereafter it shall be for the Nirvachan Nirdeshak (Panchayat) to determine how he should make the inquiry and what final order he should pass. In other words, what he has to ensure is that it should not only appear but in fact a fair inquiry should be conducted by him, and that it should not be in violation of the principles of natural justice. 12. In the present case, the Nirvachan Nirdeshak (Panchayat) gave no hearing, in the manner laid down above, to the petitioner before passing an order modifying the Register of members and setting aside the result of election and directing a repoll. As he had acted in violation of the principles of natural justice the impugned order must be quashed, though it shall be open for him to pass a suitable order in the matter after giving an opportunity to the petitioner to put forward his case on the validity of the election or the inclusion of additional names in the Register of members. 13. The petition is hereby allowed and the impugned order of the Nirvachan Nirdeshak (Panchayat), respondent No. 1, setting aside the election of the petitioner as Pradhan of the Gaon Sabha and directing re-poll on the basis of the revised list is quashed. 13. The petition is hereby allowed and the impugned order of the Nirvachan Nirdeshak (Panchayat), respondent No. 1, setting aside the election of the petitioner as Pradhan of the Gaon Sabha and directing re-poll on the basis of the revised list is quashed. The petitioner shall be deemed to be the Pradhan of the Gaon Sabha, till such time that the result of the election is not set aside by a competent authority in accordance with the law. It is further ordered that a writ of mandamus be issued directing the respondents not to give effect to the above order of the Nirvachan Nirdeshak (Panchayat) and not to interfere with the petitioner's right to function as Pradhan of the Gaon Sabha. Costs on parties.