Research › Search › Judgment

Allahabad High Court · body

2010 DIGILAW 3266 (ALL)

Bali Ram v. State of U. P.

2010-10-21

ANIL KUMAR

body2010
Hon’ble Anil Kumar,J.—Heard Sri Umesh Chandra, Senior Advocate assisted by Sri Murli Manohar Srivastava, learned counsel for the petitioner, learned Standing Counsel and Sri Sanjay Sarin and Sri R.N. Gupta on behalf of the respondents.2. By means of the present writ petition, petitioner has challenged the Electoral list (Annexure-1) villages as forest village (Van Gram) namely Bichiya Bazar, forest village Bichiya Gaon, forest village Bhawanipur, Kartaniya Ghat of District Behraich (Annexure-1)3. Factual matrix of the present case as submitted by Sri Umesh Chandra, Senior Advocate, learned counsel for the petitioner while assailing the said electoral list (Annexure-1) are that the persons whose name find place in the forest village (Van Gram) Bichiya Bazar, forest village Bichiya Gaon, forest village Bhawanipur, forest village Kartaniya Ghat of District Behraich (hereinafter referred to as the villages in question), are not village or Gaon as per the definition of village as provided under Section 2(t), of U.P. Panchayat Act, 1947 (hereinafter referred to as the Act). The said villages are not revenue villages as per the revenue records of the district.4. He further submits that as per the definition of ‘Village’ under Section 2(t) of the Act, it is any local area, recorded as a village in the revenue records of the district in which it is situate, and includes any area which the State Government may, by general or special order, declare to be a village for the purpose of this Act. Moreover, as per Section 2(g) of the Act “Gram Sabha” means a body, established under Section 3, consisting of persons registered in the electoral rolls relating to a village comprised within the area of a Gram Panchayat. But to the knowledge of the petitioner the State Government has not included said forest villages (Van Gram) Bichiya Bazar, forest vilalge Bichiya Gaon, forest village Bhawanipur, forest village Kartaniya Ghat in Gram Panchayat Bishunapur, Behraich.5. Sri Umesh Chandra, further submits that as per the Section 9 of the Act, Electoral Roll for each territorial constituency of Gram Panchayat shall be prepared in accordance with the provisions of the Act and the rules made thereunder, in the superintendence, direction and control of the State Election Commission. Sri Umesh Chandra, further submits that as per the Section 9 of the Act, Electoral Roll for each territorial constituency of Gram Panchayat shall be prepared in accordance with the provisions of the Act and the rules made thereunder, in the superintendence, direction and control of the State Election Commission. But the impugned additional electoral roll (Annexure-1) in the instant case has been prepared without verifying the fact that the persons whose names have been added from serial No. 2122 to 3088 are not residents of territorial constituency of Gram Panchayat Vishunapur.6. It is also submitted on behalf of the petitioner that Section 11(F) of the said Act lay down the provisions for declaration of panchyat area and as per this section the State Government may, by notification, declare any area comprising of village or a group of villages, having so far as practicable, a population of one thousand to be Panchayat area for the purposes of said Act. Further the sub-section 2 of the Section 11(F) related in respect of modifying the area of any Panchyat area by including therein or excluding there from any area of a village or group of villages. Moreover, till date no notification has been issued by State Government altering election Panchayat area of Gram Panchayat Bishunapur. The aforesaid forest villages have not been included in the said gram Panchayat. So, the impugned action on the part of respondents, including the names of the persons in the Gram Panchayat Bishunapur, who are residents of aforesaid forest villages, which do not form part of the Panchayat area of Gram Panchayat Bishunapur, is illegal and arbitrary and against the provisions of law.7. Learned counsel for the petitioner has submitted that the State Election Commission has already finalized the voter list of the village Panchyat Bishunapur on 22.07.2010. But later on some of the persons who are resident of forest village Bhawanipur preferred a representation before the District Magistrate, Nanpara, Behraich and thereafter the persons of the said villages went on hunger strike, as such the District Magistrate, Behraich due to political pressure exercised in the matter in question the Electoral list (Annexure-1) was published by which the name of the 1232 persons included in the voter list.8. Further, in view of the abovesaid document the petitioner(Sri Bali Ram who is the resident of the village (Gram Panchyat of Bishunapur) approached this Court for redressal of his grievances by filing Writ Petition No. 9745 (MB) of 2010, Ram Bali v. State of U.P. and others and the main relief claimed by him in the said writ petition are as under:-“1. Issue a writ, direction or order in the nature of mandamus directing the opposite parties not to include names of any person in the voter list of Village Bishunapur, Gram Panchayat Bishunpur, Block Mihipurwa, District Behraich, who are not residing in said village, without following provisions of U.P. Panchayat Raj (Registration of Electors) Rules 1994.”9. The aforesaid Writ Petition No. 9745 (MB) of 2010, Ram Bali v. State of U.P. and others, was disposed of on 01.10.2010, the operative portion is as under:-“Thus, this writ petition is disposed of with a direction to District Magistrate/District Election Officer, Bahraich, opposite party no.5, to decide and dispose of the pending representation of the petitioner dated 27.09.2010, annexure-2 to the writ petition, on merit, before 11.10.2010.”10. On behalf of the petitioner it is stated that till date the representation of the petitioner dated 27.02.2009 as directed by this Court vide order dated 01.10.2010 has not been disposed of, as such the petitioner filed the present writ petition before this Court challenging the Electoral list (Annexure-1) to the writ petition, and the grounds on which the challenge is made are summarized as under:-A. That the aforesaid forest villages are not villages of gaon in the definition of village provided under Section 2(t) of the U.P. Panchayat Raj Act.B. That till date, to the knowledge of the petitioner, the State Government has not issued any notification in the official gazette including the aforesaid forest villages in Gram Sabha Vishunapur. Accordingly, the action on the part of electoral registration officer, Behraich including the names of the persons of said forest villages is illegal.C. That till date Panchayat area of Gram Panchayat Bishunapur has neither altered nor aforesaid forest villages are included in the said Gram Panchyat. The notification of the election was made by the District Election Officer on 18 September, 2010. Till that date impugned additional electoral roll was not in existence. The notification of the election was made by the District Election Officer on 18 September, 2010. Till that date impugned additional electoral roll was not in existence. The action on the part of concerned authorities including the names of the persons in the Gram Panchayat Vishnupur who are residents of different aforesaid forest villages which do not form part of the Panchyat area of Gram Panchyat Bishunapur.D. That the aforesaid forest villages are not part of the village panchyat Bishunapur. The limits of said village are different from the revenue villages of Bishunapur which is also evident from a map published in a book related to Vangram.E. That the persons of said forest Villages went on hunger strike before the District Magistrate, Behraich and the District Magistrate under pressure directed orally to include the names of these persons in the electoral list.11. In support of the abovesaid submission, learnd counsel for the petitioner relied on the judgment of the Apex Court in the case of Kabul Singh v. Kundan Singh and others, 1969 (2) SCC 452 wherein it is held as under:-“They form a complete code by themselves in the matter of preparation and maintenance of electoral rolls. It is clear from those provisions that the entries found in the electoral roll are final and they are not open to challenge either before a civil court or before a tribunal which considers the validity of any election.”12. And in the case of Laxman Charan Singh v. A.K.M. Hassan Uzzaman and others, (1985) 4 SCC 689, wherein it is held as under:-“The next question is whether the objection to the inclusion of wrong names or claims to inclusion of eligible names in the electoral rolls can be taken in an election petition under Section 100 of the 1951 Act. It cannot be. Mr. Nariman, counsel appearing for the Election Commission, submits that a qualified citizen has a right to be enrolled in the electoral roll, but he has no right to vote in a particular election. He is apparently-and only apparently-right. For Article 326 itself, says that an eligible citizen “shall be entitled to be registered as a voter at any such election.” But the enrollment of the name of a person in the electoral roll is absolutely meaningless unless he can also exercise his vote. He is apparently-and only apparently-right. For Article 326 itself, says that an eligible citizen “shall be entitled to be registered as a voter at any such election.” But the enrollment of the name of a person in the electoral roll is absolutely meaningless unless he can also exercise his vote. Before the claims and objections of above eight lakhs voters, as alleged in this case are disposed of, the election be held, the result would be a farce and will not reflect the will of the people. It has been argued by Mr. Nariman that eight lakhs are voters of the State and the claims and objections in a particular constituency may be about a few thousands. Even in the counter-affidavit, filed of behalf of the Election Commission, it has been stated that the error may be 2 or 2.1/2 per cent. This percentage, though looks small, is very material in an election fought by multiplicity of political parties and independent candidates as is notoriously the case in India.”13. Sri Umesh Chandra, Senior Advocate in the light of the abovesaid facts submits that the persons who are residing in the said villages and whose names find place in the Electoral list (Annexure-1) may be restrained from casting vote in the Panchayat election for the post of Pradhan under the Panchayat Raj Act for which election programme has already been notified by the State Election Commission.14. Sri Rakesh Srivastava and Sri Sanjay Sarin, learned counsel appearing on behalf of the State of U.P. and U.P. State Election Commission respectively submits that in the present case, the election programme has already been notified by the O.P. No. 2/U.P. State Election Commission, Lucknow on 16th of September, 2010, as such the present writ petition filed by the petitioner is not maintainable on the alleged facts and for redressal of grievances raised in the present case, as he has got a remedy of election petition under Section 12(C) of the Act because inclusion of the name of a person in the voterlist is a ground to file an election petition as per the provisions as provided under Section 12(C)(2)(A)(b)of the Act.15. Learned counsel for the respondents also submits that for identical relief which has been prayed in the present writ petition by the petitioner, he had already approached this Court earlier by filing a Writ Petition No. 9745 (MS) of 2010 disposed of vide order dated 01.10.20410 with certain direction and in case if as per the version of the petitioner the said direction has not been complied with, the petitioner has got appropriate remedy before the appropriate forum, so the present writ petition filed by him is not maintainable and liable to be dismissed.16. I have heard the counsel for the parties and gone through the record.17. Democracy is a concept, a political philosophy, an ideal practiced by many nations culturally advanced and politically mature by resorting to governance by representative of the people elected directly or indirectly. But electing representatives to govern is neither a ‘fundamental right’ nor a common right’ but a special right created by a statutes, or a ‘political right’, or privilege and not a natural ‘absolute’ or vested right.18. The Act was enacted by the U.P. legislature to establish and develop Local Self-Government in the rural areas of the States and to make better provision for village administration and development. The Act amongst other things makes provision for establishment and constitution of Gram Sabhas and Gram Panchayats, election of Pradhans and Up-Pradhans of Gram Sabhas and members of Gram Panchayats and removal of Pradhans and Up-Pradhans.19. By the Constitution (Seventy-third Amendment) Act, 1992 Part IX (Articles 243 to 243-O) has been introduced in the Constitution. The said part contains provision relating to Panchayats at the village intermediate and district levels.20. In accordance with the said requirement, the U.P. State Legislature amended the Act by enacting Act 9 of the 1994. As a result of the amendment introduced in the Act 9 of the 1994 the Gaon Sabhas have been designated as Gram Sabhas and under Section 3 a Gram Sabha has to be established for a village or group of villages by the State Government by notification.21. The Gram Sabha consists of persons registered in the electoral rolls relating to a village comprised within the area of the Gram Panchayat. The Gram Sabha consists of persons registered in the electoral rolls relating to a village comprised within the area of the Gram Panchayat. Under Section 11 F the State Government is required to declare by notification any area comprising a village or group of villages, having as far as practicable, a population of one thousand to be a Panchayat area for the purpose of the Act. Section 12 provides for the constitution of a Gram Panchayat for every Panchayat area.22. The Gram Panchayat consists of a Pradhan and nine members where the Panchayat area is having a population of one thousand, eleven members where the Panchayat area is having a population of more than one thousand but not more than two thousand but not more than three thousand and fifteen members where the Panchayat area is having a population of more than three thousand. The election to the office of the Pradhan continues to be held by secret ballot by all the members of the Gram Sabha as laid down in Section 12-A and the Rules known as U.P. Panchayat Raj (Registration of Elector) Rule 1994.23. In view of the abovesaid facts, as per the law as laid down by the Apex Court in the case of Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others, (1978) 1 SCC 405 :-“Para 22 “At the first blush we get the comprehensive impression that every calling in question of an election save, at the end, by an election petition, is forbidden. What, then, is an election? What is ‘calling in question’? Every step from start to finish of the total process constitutes ‘election’, not merely the conclusion or culmination. Can the cancellation of the entire poll be called a step in the process and for the progress of an election, or is it a reverse step of undoing what has been done in the progress of the election, a non-step or anti-step setting at nought the process and, therefore, not a step towards the goal and hence liberated from the coils of Article 329(b)? And, if this act or step were to be shielded by the constitutional provision, what is an aggrieved party to do? This takes us to the enquiry about the ambit of Section 100 of the Act and the object of Article 329(b) read with Article 324. And, if this act or step were to be shielded by the constitutional provision, what is an aggrieved party to do? This takes us to the enquiry about the ambit of Section 100 of the Act and the object of Article 329(b) read with Article 324. Such is the outline of the complex issue projected before us.”24. Further in the case of Shri Sant Sadguru Janardan Swami v. State of Maharashtra, (2001) 8 SCC 509 , the Apex Court held as under:-“In view of our finding that preparation of the electoral roll is being an intermediate stage in the process of election of the managing committee of a specified society and the election process having been set in motion, it is well settled that the High Court should not stay the continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll. It is not disputed that the election in question has already been held and the result thereof has been stayed by an order of this Court, and once the result of the election is declared, it would be open to the appellant to challenge the election of returned candidate, if aggrieved, by means of an election petition before the election tribunal.25. Similar view has been reiterated in Tapash Majumder v. Pranab Dasgupta, (2004) 13 SCC 574 passed by Division Bench of this Court in Basant Prasad Srivastava v. State of U.P. and others, (1994) All CJ 162 has held that it is desirable that the election process should end as early as possible and the declaration of result should not be deferred through interim orders. Any interference with the election process at the intermediate stage under Article 226 of the Constitution of India is not desirable.26. Hon’ble the Supreme Court in Pundlik v. State of Maharashtra, 2006(7) SCC 181 held that the writ Court was justified to hold that once election process commences and is notified with that ordinarily High Court should not interfere under Extraordinary Jurisdiction under Article 226 of the Constitution of India. Hon’ble the Single Judge has also rightly held that the question relating to faulty electoral roll is not a ground for interference.27. Hon’ble the Single Judge has also rightly held that the question relating to faulty electoral roll is not a ground for interference.27. Moreover two Division Bench of this Court in regard to the matter relating to Election under U.P. Cooperative Societies Act and Rules, namely of Sudhir Kumar Sharma v. State of U.P. and others, 2010 (18) LCD 522 and Lal Bahadur v. District Magistrate, Bahraich [2009 (27) LCD 1086] held that the election process started on issuance of the election programme and thereafter if a person has any grievance in respect to the mode of holding of election or rejection of nomination or deletion of name in the voter-list then in that circumstances the writ petition filed by him for the said purpose is not maintainable and he should raise the grievance, if any, by filing an election petition.28. Further, Article 243 (O) of the Constitution of India provides as under:-“243 O. Bar to interference by courts in electoral matters.-Notwithstanding anything in this Constitution,-(a) 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 243K, shall not be called in question in any court;(b) 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.]”29. As per the undisputed facts of the present case that the petitioner (Bali Ram) who is the resident of Village Bishunapur District Behraich has filed the present writ petition thereby challenging the voter-list dated 30.09.2010 (Annexure-1) by which the name of the certain persons (1232 persons) are included in the said voter-list who are the residents of the villages for the purpose of casing their vote in the forthcoming Pradhan election of the village Panchayat under the Panchayat Raj Act.30. Needless to mention that under Section 12 (C) of the Panchayat Raj Act a detailed procedure for filing of the election petition is provided, accordingly read with the said Section, and the provisions as provided under Section 12-C(2)(A)(b)(ii) of the Act, which provides (ii) an elector for having voted or refrained from voting. Needless to mention that under Section 12 (C) of the Panchayat Raj Act a detailed procedure for filing of the election petition is provided, accordingly read with the said Section, and the provisions as provided under Section 12-C(2)(A)(b)(ii) of the Act, which provides (ii) an elector for having voted or refrained from voting. In case if the petitioner is aggrieved by the inclusion of the name of 1232 persons in the Electoral list (Annexure-1) for the purpose of casting vote in the forthcoming election of Pradhan for village Panchayat Bishnapur District Behraich, then he has got a remedy of filing election petition under Section 12(C) of the Act. So, the present writ petition filed by the petitioners is not maintainable at this stage, because the Election programme has already been notified/issued by the U.P. State Election Commission for conducting the Election in question.31. For the foregoing reasons, the present writ petition is dismissed as not maintainable at this stage as the Election programme for holding the Election in question has already been issued/notified by the U.P. State Election Commission.32. No order as to costs.(Petition dismissed)_____________