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2008 DIGILAW 1307 (ALL)

PHOOL CHANDRA v. STATE OF UTTAR PRADESH

2008-07-11

H.L.GOKHALE, VINEET SARAN

body2008
JUDGMENT Hon’ble H.L. Gokhale, C.J.—Heard Mr. Radha Kant Ojha with Mr. N.L. Srivastava, learned Counsel for the petitioner. Mr. Zafar Nayyer, learned Additional Advocate General with Mr. Y.K. Srivastava, learned Standing Counsel appears for respondents 1 and 3. Mr. P.N. Rai, appears for respondent No. 2 2. The petitioner is an elected member of Block Panchayat of Manikpur in district Chitrakoot. After this election was held, the petitioner contested for the election to the post of Block Pramukh (Block Chairman). One Dinesh Prasad Misra got elected. The petitioner has filed an election petition in the Court of District Judge, Chitrakoot. It is numbered as Election Petition No. 1 of 2006 and is pending in the Court of Additional District Judge, Chitrakoot. 3. The aforesaid Dinesh Prasad Misra resigned from his post on 7.7.2007 and that was accepted by the President of Zila Panchayat on 13.7.2007. Mr. Misra has resigned since he has been elected as a member of the State Legislature. Now the State Election Commissioner by its notification dated 7.7.2008 has announced the programme of the election to this vacancy and under this programme, the last date for filing nomination is 14.7.2008. The case of the petitioner is that when his Election Petition is pending, the Election Commission cannot proceed to hold the election for that post. 4. Mr. Ojha, learned Counsel for the petitioner has relied upon a judgment of the Apex Court in D. Sanjeevayya v. Election Tribunal, Andhra Pradesh and others, AIR 1967 SC 1211 . In that matter, the appellant had been elected to a seat to the Andhra Pradesh Legislative Assembly. The said election had been challenged by the second respondent. During the pendency of that election petition, the appellant was appointed as a member in the Central Cabinet and in turn became a member of the Rajya Sabha. He resigned his seat in the State Legislative Assembly, and then filed a writ petition against the State Election Commission, seeking a writ of mandamus that it ought to hold the election to the vacancy arising out of his resignation. He resigned his seat in the State Legislative Assembly, and then filed a writ petition against the State Election Commission, seeking a writ of mandamus that it ought to hold the election to the vacancy arising out of his resignation. The appellant had relied upon Section 150 of the Representation of People Act, 1951, which provides that when a seat of the member elected to the Legislative Assembly becomes vacant, or is declared vacant, or his election is declared void, the Election Commission shall call upon Assembly Constituency to elect a person for the purpose of filling the vacancy. The Apex Court held that this Section will have to be interpreted in the context of Sections 84 and 98 (c) of the Act. Section 84 permits an election petition to claim in addition to claiming a declaration that the election of an elected candidate is void that the petitioner himself be declared as duly elected. Section 98 (c) lays down that at the end of the conclusion of the trial, the Tribunal can make such an order. 5. Mr. Ojha, learned Counsel for the petitioner has pressed the following observation in paragraph 4 of the Apex Court into service, which is to the effect that if the candidate who filed the election petition eventually gets a declaration that the election of the member is void and that he himself had been duly elected there will be two candidates representing the same constituency at the same time. The writ of mandamus was, therefore, declined. 6. Mr. Ojha has relied upon a judgment of the Karnataka High Court in Sri Thomas Mates Gudinho v. Election Commission of India, New Delhi and others, AIR 2002 Kant. 232. In that matter also, the similar question had come up before the Division Bench of the Karnataka High Court and similar mandamus was sought in a similar situation, and the Division Bench held that the Election Commission was not bound to hold bye-election forthwith, when a declaration is sought in a pending election petition, that the petitioner or some other candidate be declared duly elected. Relying on these two matters, Mr. Ojha, learned Counsel for the petitioner has made a converse prayer that the Election Commission be injuncted from holding the election since his election petition will become infructuous. 7. Relying on these two matters, Mr. Ojha, learned Counsel for the petitioner has made a converse prayer that the Election Commission be injuncted from holding the election since his election petition will become infructuous. 7. In reply, it has been submitted on behalf of the State of U.P. and the State Election Commission that in our case, the statutory and the factual position is different. Firstly, it is pointed out that the disputed election is under the U.P. Kshetra Panchayats and Zila Panchayats Adhiniyam, 1961, which is relateable to the provision of Part-IX of the Constitution of India on the Panchayats. Article 243-C of the Constitution of India provides for composition of Panchayats. Sub-Article (3) (a) and sub-article (5) thereof read as follows : “(3) The Legislature of a State may, by law, provide for the representation— (a) of the Chairpersons of the Panchayats at the village level, in the Panchayats at the intermediate level or, in the case of a State not having Panchayats at the intermediate level, in the Panchayats at the district level; (5) The Chairperson of— (a) a Panchayat at the village level shall be elected in such manner as the Legislature of a State may, by law, provide, and (b) a Panchayat at the intermediate level or district level shall be elected by, and from amongst, the elected members thereof.” 8. As far as the above referred State Act is concerned, Sections 7, 12 and 27-A (1)(a) and (b) are relevant for our purpose. They read as follows : “7. Pramukh and Up-Pramukh.—(1) In every Kshettra Panchayat a Pramukh, a Senior Up-Pramukh and a Junior Up-Pramukh shall be elected by the elected members of the Kshettra Panchayat from amongst themselves. (2) The election to the office of Pramukh and Up-Pramukh may be held notwithstanding any vacancy in the office of the elected members of Kshettra Panchayat.” 12. Pramukh and Up-Pramukh.—(1) In every Kshettra Panchayat a Pramukh, a Senior Up-Pramukh and a Junior Up-Pramukh shall be elected by the elected members of the Kshettra Panchayat from amongst themselves. (2) The election to the office of Pramukh and Up-Pramukh may be held notwithstanding any vacancy in the office of the elected members of Kshettra Panchayat.” 12. Filling of casual vacancies.—If a vacancy occurs by reason of death or otherwise in the office of a Pramukh, Up-Pramukh or an elected member of the Kshettra Panchayat, it shall be filled before the expiration of a period of six months from the date of such vacancy, in the manner provided for in Section 6 or 7, as the case may be, for the residue of the term of his predecessor : Provided that if on the date of occurrence of such vacancy the residue of the term of the Kshettra Panchayat is less than six months, the vacancy shall not be filled.” 27-A. Bar to legislators and holders of certain offices becoming or continuing as Pramukh, Up-Pramukh, Adhyaksha or Upadhyaksha. (1) Notwithstanding anything contained in Sections 7, 19 and 27— (a) a person shall be disqualified for being elected as, and for being, a Pramukh, Up-Pramukh, Adhyaksha or Upadhyaksha if he is— (i) a member of Parliament or of the State Legislature; or (ii) Nagar Pramukh or Up-Pramukh of a Municipal Corporation; or (iii) President or Vice-President of a Municipality; or (iv) Chairman of a Town Area Committee or President of a Notified Area Committee; (b) if a person after his election as Pramukh, Up-Pramukh, Adhyaksha or Upadhyaksha is subsequently elected or nominated to any of the offices mentioned in sub-clauses (i) to (iv) of clause (a), he shall, on the date of first publication in the Gazette of India or of Uttar Pradesh of the declaration of his election or his nomination cease to hold the office of Pramukh, Up-Pramukh, Adhyaksha or Upadhyaksha, and a casual vacancy shall thereupon occur in the office of Pramukh, Up-Pramukh, Adhyaksha or Upadhyaksha, as the case may be.” 9. It was then pointed out on behalf of the respondents that by the U.P. Panchayat Laws (Amendment) Act, 2007, the posts of Up-Pramukh, Senior Up-Pramukh, Junior Up-Pramukh and Upadhyaksha had been deleted. Sections 9 and 11 of that Act were referred to and they read as follows : “9. It was then pointed out on behalf of the respondents that by the U.P. Panchayat Laws (Amendment) Act, 2007, the posts of Up-Pramukh, Senior Up-Pramukh, Junior Up-Pramukh and Upadhyaksha had been deleted. Sections 9 and 11 of that Act were referred to and they read as follows : “9. General Amendment of U.P. Act No. 33 of 1961.—In the Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961, hereinafter in this chapter referred to as the principal Act, the words “Up-Pramukh”, “Senior Up-Pramukh”, “Junior Up-Pramukh” and “Upadhyaksha” wherever occurring including the marginal headings and Schedules, shall be omitted. 11. Amendment of Section 9.—In Section 9 of the principal Act, for sub-section (2), the following sub-section shall be substituted, namely : “(2) Where the office of the Pramukh is vacant, the District Magistrate may, by order, make such arrangement as he thinks fit for the discharge of the functions of the Pramukh, till the Pramukh is elected.” 10. Relying upon all these provisions, it was submitted by Mr. Zafar Nayyer and Mr. Y.K. Srivastava, appearing for the State that the elected members of the Panchayat have to elect the Block Pramukh. The emphasis in Section 7 (2) of the Act is that there has to be a Block Pramukh even if there is any vacancy amongst the elected members. This is because he has to exercise numerous relevant functions. Section 12 provides that if a vacancy occurs by reason of death or otherwise in the office of a Pramukh, Up-Pramukh or an elected member of the Kshettra Panchayat, it has to be filled before the expiration of a period of six months from the date of such vacancy. Section 27-A (1) (a) provides that a person cannot remain a Block Pramukh, if he becomes a member of the State Legislature. Sub-section (1)(b) of Section 27-A provides that if after his election as a Pramukh, a person becomes the member of the State Legislature, he shall cease to hold the office of Pramukh on the publication of declaration of his election or his nomination to such House. It further provides that a casual vacancy shall thereupon occur in the office. It is, therefore, submitted that a conjoint reading of these provisions is that a vacancy had arisen when Mr. It further provides that a casual vacancy shall thereupon occur in the office. It is, therefore, submitted that a conjoint reading of these provisions is that a vacancy had arisen when Mr. Mishra become a member of the State Legislature and resigned from the post of Pramukh, and the Election Commission had to hold the election for the remaining of the term within six months from the date of occurrence of the vacancy. 11. Reliance was placed by the respondents on the judgment of the Apex Court in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, Namakkal, Salem Dist., and others, AIR (39) 1952 SC 64, and particularly paragraph 7 thereof, which states that the word ‘election’ is used to embrace the whole procedure of election and the remedy of a person who is aggrieved by either rejection or acceptance of nomination paper is not to seek a writ petition, but under the Representation of People Act itself. Reliance is also placed upon a Constitution Bench judgment of the Apex Court in Lakshmi Charan Sen and others v. A.K.M. Hassan Uzzaman and others, AIR 1985 SC 1233 . In that matter, certain claims and objections to the inclusion of certain names in the electoral roll were under consideration. The Apex Court held that the election cannot be postponed for the reason that these names and objections remained to be disposed of. The Calcutta High Court had granted injunction in the writ petition. The Apex Court held that the right to be elected or having one’s name in the electoral roll is a statutory right and the election cannot be postponed for any such objection. Amongst others, it is material to note that in paragraph 28 (1) of its judgment, the Court referred with approval to its interlocutory order, wherein the Court had held as follows : “28 (1).........The allegations in the Writ Petition are of a vague and general nature, on the basis of which no relief could be granted. Secondly, though the High Court did not lack the jurisdiction to entertain the Writ Petition and to issue appropriate directions therein, no High Court in the exercise of its powers under Article 226 of the Constitution should pass any orders, interim or otherwise, which has the tendency or effect of postponing an election, which is reasonably imminent and in relation to which its writ jurisdiction is invoked. The imminence of the electoral process is a factor which must guide and govern the passing of orders in the exercise of the High Court’s writ jurisdiction........” 12. We have noted the submission of the rival parties. With respect to the judgment in D. Sanjeevayya v. Election Tribunal, Andhra Pradesh and others (supra), it must however be borne in mind that it was a case where a mandamus was sought that the Election Commission ought to hold an election and that was declined on the ground that doing so, would frustrate the pending election petition. The same reasoning is sought to be pressed into service in the present matter. The present situation is however a converse one. Here, the election is being held. The provisions concerning the election of the Panchayats have protection under the Constitution. Sections 7, 12 and 27-A make it mandatory for the State Election Commission to hold the election within six months from the date of occurrence of vacancy in the office of the Pramukh of Block Panchayat. That election is proposed to be held. The notification announcing the election is already issued and the election is very much imminent. 13. For this reason, it is not possible to accept the submission of the petitioner and to restrain the State or, the Election Commission from holding the election to the post of Block Pramukh of Manikpur Kshettra Panchayat in district Chitrakoot. 14. The writ petition is dismissed. ————