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2005 DIGILAW 452 (UTT)

Krishan Kumar v. State of Uttaranchal

2005-10-20

CYRIAC JOSEPH, PRAFULLA C.PANT

body2005
Judgement Cyriac Joseph, C.J. 1. The petitioner submitted nomination paper for election to the Zila Panchayat, Haridwar from Ward No. 27. However, the nomination paper of the petitioner was rejected by the Election Officer and consequently his name did not appear in the ballot paper. The fifth respondent Raj Pal Singh was declared elected to the Zila Panchayat, Haridwar from Ward No. 27. In such circumstances, the petitioner has filed this writ petition praying for the following reliefs:- "1. Issue a writ, order or direction in the nature of certiorari quashing the result of the election of the member of Zila Panchayat from Ward No. 27 Dariyapur Dayalpur. 2. Issue a writ, order or direction in the nature of mandamus commanding the respondents to hold the election afresh after accepting the candidature of the petitioner. 3. Issue a writ, order or direction, which this Hon'ble Court may deem fit and proper under the circumstances of the case. 4. Award the cost of the petition." 2.According to the petitioner, his nomination paper was wrongly and illegally rejected by the Election Officer. It is contended that while rejecting the nomination paper, the Election Officer did not comply with the provisions contained in Sub- Rule 3 of Rule 18 of the U. P. Kshettra Panchayats and Zlia Panchayats (Election of Members) Rules 1994. As per said Rule 18(3), the Nirvachan Adhikari (i.e. Election Officer) shall endorse on each nomination paper his decision accepting or rejecting the same and if the nomination paper is rejected, shall record in writing brief statement of his reasons for such rejection. The petitioner alleges that though the Election Officer stated that the petitioner's nomination paper was rejected, he did not record any reasons on the nomination paper, as required under Rule 18(3). It is also contended by the petitioner that he was eligible to contest as a candidate from Ward No. 27 to the Zila Panchayat, Haridwar and there was no valid reason to reject his nomination paper. 3. Even assuming that the above contentions of the petitioner are correct we are of the view that the remedy available to the petitioner is not to file a writ petition under Article 226 of Constitution of India but to file an election petition under the provisions of the U.P. Zila Panchayats (Settlement of Disputes Relating to Membership) Ruies, 1994, as applicable to the State of Uttaranchal. According to Section 27(2) (a) of the U.P. (Kshettra Panchayats and lila Panchayats) Adhiniyam, 1961, which is admittedly applicable to the State of Uttaranchal, if a dispute arises as to whether a person has been lawfully chosen a member of the Zila Panchayat under Section 18, the dispute shall be referred in the manner prescribed to the Judge whose decision shall be final and binding. As per Rule 4 of the U.P. Zila Panchayats (Settlement of Disputes Relating to membership) Rules 1994, if a dispute arises as to whether a person has been lawfully chosen under Clause (b) of Sub-Section (1) of Section 18, the matter shall be referred by means of a written petition by any person who could legally be a candidate at such choosing, to the Judge within thirty days of the date of choosing. As per Rule 5, a petition presented under Rule 4 shall state the grounds on which the member of Zila Panchayat is alleged to have been wrongly chosen. As per Rule 6, a petitioner may claim the relief that choosing of a person as member of Zila Panchayat is void. 4. The claim of the petitioner is that he is a person who could legally be a candidate in the election. The contention of the petitioner Is that, due to the wrong and illegal rejection of his nomination paper, the fifth respondent was unlawfully elected as member of Zila Panchayat, Haridwar from Ward No. 27. The petitioner mainly prays for quashing the result of the election. In other words, the prayer is for a declaration that the election of the fifth respondent is void due to the i1legai rejection of the petitioner's nomination paper. But the petitioner can file a petition under Rule 4 of the U.P. Zila Panchayats (Settlement of Disputes relating to membership) Rules 1994 praying for a declaration that the election of the fifth respondent Is void due to the illegal rejection of the petitioner's nomination paper and the Judge dealing with such a petition is competent to grant such a relief. Therefore, the petitioner has got a very effective, statutory remedy of filing a petition under Rule 4 of the U.P. Zila Panchayats (Settlement of Disputes relating to membership) Rules 1994. He has to resort to that remedy before invoking the jurisdiction of this Court under Article 226 of Constitution of India. Therefore, the petitioner has got a very effective, statutory remedy of filing a petition under Rule 4 of the U.P. Zila Panchayats (Settlement of Disputes relating to membership) Rules 1994. He has to resort to that remedy before invoking the jurisdiction of this Court under Article 226 of Constitution of India. Admittedly the petitioner has not exhausted the said statutory remedy. He has not established any extraordinary circumstances justifying the intervention of this Court under Article 226 of the Constitution even before exhausting such alternate remedy. 5. Therefore, this writ petition is not maintainable. It is accordingly dismissed without prejudice to the right of the petitioner to challenge the election of the fifth respondent through an election petition under the above mentioned Rules. 6. Learned counsel for the petitioner submitted that the petitioner will file an election petition within the statutory period and the court having jurisdiction to try the election petition may be directed to dispose of the election petition expeditiously. In our view, the request is pre-mature. The court having Jurisdiction to try the election petition Is expected to and bound to dispose of the election petition as expeditiously as possible. Only if undue or un-necessary delay IS caused in the disposal of the election petition, the petitioner can request for a direction to dispose of the election petition expeditiously. Therefore, we do not find it necessary or proper to issue any such direction at this stage in respect of a petition which has not yet been filed. 7. The writ petition is disposed of as above.