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2000 DIGILAW 301 (RAJ)

Gopal v. State of Rajasthan

2000-03-06

R.R.YADAV

body2000
JUDGMENT 1. - The instant writ petition has been filed by the petitioners, who are voters of Panchayat Circle Hurla, Tehsil, Mahuwa, District-Dausa, for cancelling the declaration of the result of the election and the certificate, issued by the Returning Officer, to Shiv Prasad Meena, respondent No. 6, on 4.2.2000, and restraining him from taking oath of the office of the aforesaid Panchayat Circle. It is further prayed that the respondents may be directed to order re-poll of the election of the office of the Sarpanch, Panchaayt Circle Hurla, Tehsil, Mahuwa, District-Dausa. 2. The present writ petition has been filed on the ground that ballot papers were rejected contrary to Rule-50 of the Rajasthan Panchayati Raj (Election) Rules, 1994 (hereinafter called, "the Rules of 1994") and further the ballots counted were found less than the ballots cast by 23 votes, for which, immediate objection was raised before the declaration of the result, but no action was taken as per Rule-50, read with Rule-49 (ka) of the Rules of 1994 and no re-polling was made according to the said provisions of law, by respondent No.2, despite the representation dated 4.2.2000, filed by hand, before him. It is averred that the act/omission and commission of respondent No.2 has resulted in violation of constitutional rights of voters, in a democratic set-up, which is to be held in violation of the legal provisions, stated here in above. When the aforesaid matter came up for consideration before this Court, on 21.2.2000, the following order was passed. "It is settled principle of law that an office bearer under the Rajasthan Panchayati Raj Act, 1994, holds statutory office subject to the statutory provisions contained therein. Once a person is elected for an office of Panchayat under Rajasthan Panchayati Raj Act, 1994 and a certificate is issued, he can be non-seated only by filing of an-election petition under Section 43 of the Rajasthan Panchayati Raj Act, 1994. Under Section 43 of the aforesaid Act, only a candidate can question the declaration of result by Returning Officer by filing an election petition under the aforesaid Act. There is no provision where election of an elected office bearer of Rajasthan Panchayat can be challenged by a voter. Learned counsel for the petitioners, Mr. Under Section 43 of the aforesaid Act, only a candidate can question the declaration of result by Returning Officer by filing an election petition under the aforesaid Act. There is no provision where election of an elected office bearer of Rajasthan Panchayat can be challenged by a voter. Learned counsel for the petitioners, Mr. Asopa, prayed for and granted 10 days' time to get prepared as to whether under Section 43 of the Rajasthan Panchayati Raj Act, 1994, a voter can also be permitted to challenge election of validly elected office bearer under Rajasthan Panchayati Raj Act, to whom a certificate has been issued by the Returning Officer." 3. I have heard the learned counsel for the petitioner, Shri P.S. Asopa, at length, and perused the material provisions of the Rajasthan Panchayati Raj Act, 1994 (hereinafter called, "the Act of 1994") and the election rules framed thereunder. 4. In the instant writ petition, the Court is called upon to decide the following questions : 1 Whether this Court can go behind the wisdom of the State Legislature, providing an election petition by any candidate under Section 43 of Act of 1994 after declaration of result on the grounds enumerated under Rule 80 of the Election Rules 1994 within thirty days framed under the said Act by substituting any votet in place of any candidate in garb of interpretation ? 2 Whether the result declared in favour of respondent No.6, Shiv Prasad Meena, duly declared elected Sarpanch of Panchayat Circle Hurla aforesaid can be challenged before this Court, by filing a writ petition by the present three voters or it can be challenged only by any candidate as envisaged under Section 43 of Act of 1994 ? 5. It is urged by the learned counsel for the petitioners that an election petition under Section 43 of the Act of 1994, can be filed only by a candidate, by presenting it in the prescribed manner, to the District Judge having jurisdiction of hearing a petition in this behalf, on the prescribed grounds and within the prescribed period under Rule 80 of the Election Rules, 1994. It is submitted by the learned counsel for the petitioners that since under Section 43 of the Act of 1994, the petitioners, who are voters, are not entitled to file an election petition, therefore, they are entitled to challenge the declaration of result of respondent No.6 as elected Sarpanch, by filing the present writ petition. 6. Suffice it to say in this regard that respondent No.6 is elected as Sarpanch of Panchayat Circle Hurla, Tehsil, Mahuwa, District-Dausa, therefore, he can be non-seated from the aforesaid elected office, under the Act of 1994 and the election rules framed thereunder. Respondent No.6 has no fundamental right to continue in his office but he has statutory right to continue in his office as elected Sarpanch. His statutory right to hold the aforesaid office, is subject to the law made by the State Legislature by enacting the Act of 1994 and the rules framed thereunder. He is also liable to be non-seated from his office of Sarpanch provided any candidate files an election petition against declaration of result of Sarpanch within prescribed period and on the prescribed grounds enumerated under Rule 80 of Election Rules 1994. 1 am of the view that after expiry of prescribed period the voters are not entitled to file a writ petition on the behest of any candidate, on his failure to file an election petition within prescribed period. In garb of interpretation this court cannot afford to substitute any voter in place of any candidate used under Section 43 of Act of 1994. 7. The learned counsel for the petitioner invited my attention towards Section 81 of The Representation of The People Act, 1951, wherein, an election petition can be filed by a candidate of such election or any other elector, it is to be noticed that there is no such provision under Section 43 of the Act of 1994, wherein it is clearly provided that the result of an election, declared by Returning Officer, can be questioned only by a candidate, and not by an elector. I am of the opinion that once the State Legislature has provided under Section 43 of the Act of 1994 that only a candidate can file an election petition, then, this Court cannot go behind the wisdom of the Legislature by holding that as an elector is not entitled to file an election petition under Section 43 of Act of 1994, therefore, he is entitled to question the declaration of result of a Sarpanch by Returning Officer by filing a writ petition. It is concerned by the learned counsel for the petitioner that if the voters were allowed to file an election petition under Section 43 of the Act of 1994, then they would not have filed the present petition. In my considered opinion, in garb of interpretation of Section 43 of the Act of 1994, this Court cannot add an additional word "electors" by making them entitled to file an election petition nor it is possible for this court to permit elector(s) to file petition questioning the declaration of result of a Sarpanch by Returning Officer. I am of the view that if it is not possible for a court to do a thing directly, it is impermissible to make it possible to do the same thing indirectly. In garb of interpretation, legislation by Courts, is impermissible. 8. The bottom-line argument of the learned counsel for the petitioners, is that in the facts and circumstances of the present case, a mandamus may be issued to respondent No.2, the State Election Commisisoner, Panchayat & Municipalities, Secretariat, Jaipur, directing him to order for a re-poll, for the office of Sarpanch of Panchayat Circle Hurla, Tehsil, Mahuwa, District-Dausa. According to the learned counsel for the petitioners, in the present case, a writ of mandamus can be issued to respondent No.2. The aforesaid argument of the learned counsel for the petitioners, is attractive but fallacious. In my considered opinion, once return is submitted in Form-VII, under Rule 52 of Election Rules 1994, by the Returning Officer, and a certificate is issued to respondent No.6, on 4.2.2000, declaring him duly elected Sarpanch of Panchayat Circle Hurla, Tehsil, Mahuwa, District-Dausa, it is not possible for this Court, to put the needle of the dock back. In my considered opinion, once return is submitted in Form-VII, under Rule 52 of Election Rules 1994, by the Returning Officer, and a certificate is issued to respondent No.6, on 4.2.2000, declaring him duly elected Sarpanch of Panchayat Circle Hurla, Tehsil, Mahuwa, District-Dausa, it is not possible for this Court, to put the needle of the dock back. It is settled principle of law that in exercise of power of judicial review under Article 226 of the Constitution of India, this Court is expected to pass a manageable order. After declaration of result and issuance of certificate by the Returning Officer, to respondent No.6, as duly elected Sarpanch of Panchayat Circle Hurla, Tehsil, Mahuwa, District-Dausa, it is not manageable now to issue a mandamus to respondent No.2, to order for a re-poll, or to consider and determine the question of re-polling, in the present case. 9. No other point has been raised and argued before me except the points discussed hereinabove.As a result of the aforementioned discussion, the instant writ petition lacks merit and it is hereby dismissed in limine.Petition Dismissed. *******