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2001 DIGILAW 678 (ALL)

NEERAJ KAMBOJ v. STATE OF UTTAR PRADESH

2001-07-12

G.P.MATHUR, U.S.TRIPATHI

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G. P. MATHUR, U. S. TRIPATHI, JJ. ( 1 ) THIS writ petition under Article 226 of the Constitution of India has been filed seeking three reliefs, namely, quashing of the order of reservation of seats, dated 18. 5. 2000, quashing the election process Including declaration of result dated 26. 6. 2000 and a writ of mandamus declaratlng appointment of Sub-Divisional Magistrate as Prescribed Authority under U. P. Panchayat Raj (Settlement of Dispute of Election) Rules, 1994, as illegal. ( 2 ) THE petitioners are members of Gram Panchayat Dara Kot Tala, Block Punwaraka, district saharanpur. They claim that the office of Pradhan of Gram Panchayat Dara Kot Tala was reserved in favour of a Scheduled Caste woman candidate in the elections held in the year. 1995. The State Election Commission issued a notification on 18. 5. 2000. wherein the office of Pradhan of Gram Panchayat Dara Kot Tala. referred to above was again reserved in favour of a Scheduled caste woman candidate. The election was held in the third week of June, 2000 and the result was declared on 26. 6. 2000. ( 3 ) THE principal contention urged by the learned counsel for the petitioners is that the reservation of the office of the Pradhan of Gram Panchayat Dara Kot Tala for a Scheduled Caste woman candidate in the election held fn dune, 2000 was Illegal as the principle of rotation provided under Article 243d of the Constitution was not followed. Clause 4 of Article 243d reads as follows : " (4) The office of the chairperson in the panchayats at the village or any other level shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the legislature of a State may. by law. Clause 4 of Article 243d reads as follows : " (4) The office of the chairperson in the panchayats at the village or any other level shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the legislature of a State may. by law. provide : provided that the number of offices of chairperson reserved for the Scheduled Castes and the scheduled Tribes in the panchayats at each level in any State shall bear, as nearly as may be, the same proportion to the total number of such offices in the panchayats at each level as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State bears to the total population of the State : provided further that not less than one third of the total number of offices of chairpersons in the panchayats at each level shall be reserved for women : provided also that the number of offices reserved under this clause shall be allotted by rotation to different panchayat at each level. " ( 4 ) LEARNED counsel for the petitioner has submitted that the third proviso of clause 4 specifically provides that the number of offices reserved under this clause shall be allotted by rotation to different panchayats at each level and, therefore, the office of the Pradhan in the Gram Panchayat concerned should not have been reserved again in favour of a Scheduled Caste woman candidate, as it had already been reserved in favour of such a category of person in the earlier election held in June, 1995. In view of the language used in the proviso, there can be no dispute that the office of chairperson in the Gram Panchayat. namely, Pradhan of Gram Panchayat has to be allotted by rotation and as it had been reserved In favour of a Scheduled Caste woman candidate In the election held In 1995. it could not be reserved for the same category of person in the election held In June. 2000. ( 5 ) HOWEVER, the question which arises for consideration Is whether the relief claimed by the petitioner can be granted in the present writ petition which has been filed on 11. 9. 2000, long after the notification had been issued reserving the seat in favour of Scheduled Caste woman candidate. 2000. ( 5 ) HOWEVER, the question which arises for consideration Is whether the relief claimed by the petitioner can be granted in the present writ petition which has been filed on 11. 9. 2000, long after the notification had been issued reserving the seat in favour of Scheduled Caste woman candidate. The election has been held in the third week of June, 2000 and the result has also been declared on 26. 6. 2000. The petitioner has chosen to challenge the notification regarding reservation of seat more than three months after it had been issued. In State of U. P. v. Pradhan sangh Kshetra Samiti. AIR 1995 SC 1512 , which Is a case governed by the provisions of the U. P. Panchayat Raj Act, the Apex Court observed as follows in paragraph 11 : ". . . . . If we read Articles 243c. 243k and 243q in place of Article 327 and Section 2 (kk), of the delimitation Act. 1950, It, will be obvious that neither the delimitation of the panchayat area nor of the constituencies in the said areas and the allotments of seats to the constituencies could have been challenged or the Court could have entertained such a challenge except on the ground that before the delimitation, no objections were invited and no hearing was given. Even this challenge could not have been entertained after the notification for holding the elections was issued. . . . . " ( 6 ) A similar controversy was examined in Anugrah Narain Singh v. State of U. P. , JT 1996 (8)SC 733, wherein the elections scheduled to be held with regard to municipal corporations governed by the U. P. Municipal Corporations Adhiniyam. 1959, were challenged. With regard to the delimitation of the constituency. It was held as follows in paragraph 25 of the reports : . . . . . The U. P. Act of 1959, however, merely provides that the draft order of delimitation of municipal area shall be published in the Official Gazette for objections for a period of not less than seven days. The draft order may be altered or modified after hearing the objections filed, if any. Thereupon, it shall become final. It does not lay down that such an order upon reaching finality will have the force of law and shall not be questioned in any Court of law. The draft order may be altered or modified after hearing the objections filed, if any. Thereupon, it shall become final. It does not lay down that such an order upon reaching finality will have the force of law and shall not be questioned in any Court of law. For this reason, it may not be possible to say that such order made under Section 32 of the U. P. Act has the force of law and Is beyond challenge by virtue of Article 243zg. But any such challenge should be made soon after. the final order is published. . . . . The validity of a final order published under Section 33 of the U. P. Act is beyond the ken of election court constituted under Section 61 of the said Act. " ( 7 ) IN view of these authoritative pronouncements, it is clear that the petitioner could challenge the notification regarding reservation of seats soon after it was issued and before the notification for holding the election had been issued. ( 8 ) LEARNED counsel for the petitioner has submitted that the notification regarding reservation of seats was Issued on 18. 5. 2000 and on the same date, the notification regarding holding of election had been Issued and. therefore, the petitioner could not have challenged the notification regarding reservation of seats prior to Issuance of the notification regarding holding of election. We have not issued notices to the respondents for filing counter-affidavit and in absence of any counter-affidavit, it is not proper to record any finding on the question whether both the notifications had been issued on the same day. However, according to the case set up by the petitioner, the election took place in the third week of June, 2000, which was more than a month after the notification had been issued regarding reservation of seats. It was fully open to the petitioner to challenge the notification dated 18. 5. 2000, before the election had taken place. The petitioners having not done so and having filed the writ petition as lale as on 11. 9. 2000, such a challenge cannot be entertained at this stage. It was fully open to the petitioner to challenge the notification dated 18. 5. 2000, before the election had taken place. The petitioners having not done so and having filed the writ petition as lale as on 11. 9. 2000, such a challenge cannot be entertained at this stage. ( 9 ) LEARNED counsel has further submitted that under the provisions of U. P. Panchayat Raj (Settlement of Dispute of Election) Rules, 1994, a Sub-Divisional Magistrate is appointed as prescribed authority to decide the disputes regarding elections and this appointment of a sub-Divisional Magistrate is Illegal. The writ petitioners have not filed any election petition as such they have no locus slandi to challenge the provisions of the Rules wherein a Sub-Divisional magistrate has been appointed as prescribed authority. Such a challenge can be entertained at the instance of a person who is a party to an election petition, which Is pending before a sub-Divisional Magistrate, functioning as a prescribed authority. ( 10 ) IN view of the discussions made above, we find no merit in this writ petition. It is hereby dismissed at the admission stage.