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2010 DIGILAW 1002 (JHR)

Debashish Roy v. State of Jharkhand

2010-11-04

R.R.PRASAD

body2010
Order Through this writ application, extraordinary jurisdiction of this Court under Article 226 of the Constitution of India has been invoked, wherein prayer has been made to direct the respondent-Authority to include the name of the petitioner in the voter list of Ward No. 10, Kadamdih, Chandil Panchayat and also to direct the concerned respondent to accept the nomination of the petitioner for the post of Ward Commissioner for the said Ward. 2. Mr. Indrajit Sinha, learned counsel appearing for the petitioner, submits that the petitioner is a resident of Ward No. 10 of Chandil Block which has been divided into 12 election areas, but the name of the petitioner does not find place in the voter list of Ward No. 10 published recently and as such, the petitioner, who is desirous of contesting the election from Ward NO.1 0, would not be eligible to contest the election and thereby the petitioner would be prevented from exercising his statutory and democratic right and under this situation, the petitioner has moved to this Court for a direction to the concerned respondent to include his name in the voter list and to accept his nomination form for the post of Ward Commissioner. 3. Learned Advocate General by referring to Article 243(0) of the Constitution of India submits that since the matter pertains to election of Gram Panchayat, it cannot be called in question except by an election petition presented before a Competent Authority and in the manner as provided under law. In this respect, learned Advocate General and also Mr. Sumeet Gadodia, learned counsel appearing for the State Election Commission, would submit that keeping in view the constitutional mandate, the Hon'ble Supreme Court in number of cases has held that process of election of Parliament, State Legislature, Municipality, Gram Panchayat etc. cannot be questioned in an application under Article 226 of the Constitution of India, rather that can be questioned only by way of election petition. Learned counsel in this respect referred to the decisions rendered in the cases of Kishansing Tomar vs. Municipal Corporation of the City of Ahmedabad and Others [ (2006)8 S.C.C. 352 ] and Anugrah Narain Singh and Another vs. State of U.P. and Others [ (1996) 6 S.C.C. 303 ]. 4. Mr. Learned counsel in this respect referred to the decisions rendered in the cases of Kishansing Tomar vs. Municipal Corporation of the City of Ahmedabad and Others [ (2006)8 S.C.C. 352 ] and Anugrah Narain Singh and Another vs. State of U.P. and Others [ (1996) 6 S.C.C. 303 ]. 4. Mr. Sumeet Gadodia, learned counsel, further submits that it is absolutely wrong on the part of the petitioner to state that the voter list was published on 29.10.2010 rather the same has been published as far back as on 15.9.2010 and that the petitioner does not seem to have taken any objection within the stipulated time. Thus, it was submitted that the petitioner instead of taking recourse available under the relevant rule has moved this Court in order to stall the process of election. 5. Having heard learned counsel for the parties and regard being had to the submission advanced on behalf of the parties, I do find that there has been no. statement to the effect that when the petitioner did not find place in the electoral roll published, any objection under the relevant rule was taken before the Competent Authority for rectification of electoral roll. So far preparation of electoral roll is concerned, elaborate measure seems to be there for ensuring proper preparation of the electoral roll and as such, it can safely be said that sufficient safeguards are there against any abuse or misuse of power. Under this situation, there is hardly any scope for a court to intervene and correct the electoral roll under Article 226 of the Constitution of India. In fact, if this is allowed to be done, every election will be indefinitely delayed and it will not be possible to comply the mandate of the Constitution. Consequently, a grave injustice would be done to thousands and thousands of people who have right to elect their representatives to Gram Panchayat. In this context, I may refer to a case of Lakshmi Charan 5en vs. A.K.M. Hassan Uzzaman [(1985)4 S.C.C. 689], wherein it has been held as follows:- "the fact that certain claims and objections are not finally disposed of, even assuming that they are filed in accordance with law, cannot arrest the process of election to the legislature and the election has to be held on the basis of the electoral roll which is in force on the last date for making nominations. " 6. The aforesaid view expressed by the Hon'ble Supreme Court got its approval also in a case of Kishansing Tomar vs. Municipal Corporation of the City of Ahmedabad and Others [ (2006)8 S.C.C. 352 ]. 7. Otherwise also the petitioner is not entitled to have a relief as claimed in view of the bar enunciated in Article 243(0) of the Constitution of India, which reads as follows:- "243 (O). Bar to interfere by courts in electoral matters.-Notwithstanding anything in this Constitution- (e) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under Article 243(K), shall not be called in question in any court; (f) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any Law made by the Legislature of a State." 8. Thus, once the process of election got started, any dispute arising of the process of election can be challenged by way of election petition in view of the bar enunciated in Article 243(0) of the Constitution of India. 9. The similar proposition in context of Article 243(ZG) of the Constitution of India which is in pari materia to Article 243(0) has been laid down by the Hon'ble Supreme Court in the case of Anugrah Narain Singh and Another (supra) by holding that in view of the bar imposed by Article 243(ZG) of the Constitution, the writ jurisdiction of the court could not be invoked to stall the election process. 10. Keeping in view all these aspects of the matter, I do not find any merit in this writ application and hence, this writ application is dismissed. .