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2011 DIGILAW 1700 (ALL)

AYESHA v. STATE OF U. P.

2011-07-15

PRADEEP KANT, RITU RAJ AWASTHI

body2011
JUDGMENT Hon’ble Ritu Raj Awasthi, J.—Heard Dr. L.P.Misra, for the petitioner, learned Chief Standing Counsel for respondent No. 1, Sri Raghvendra Singh, learned Senior Advocate for respondents No. 2 and 3 and Sri Sanjay Sareen for respondents No. 4 to 6. 2. This writ petition under Article 226 of the Constitution of India has been preferred by Smt. Ayesha challenging the order dated 2.12.2010, passed by the State Election Commission, U.P., hereinafter referred to as the Commission, by means of which her election as Member from Ward No. 19 of Zila Panchayat Bareilly has been cancelled and the election has been countermanded. 3. Initially, an order was passed by the Commission cancelling the election on 30.10.2010, but on a challenge being made to the said order by the petitioner, the said order was set aside by the High Court vide order dated 22.11.2010 after holding that the same was passed without affording any opportunity to the petitioner. The Court further directed that fresh order be passed after giving an opportunity to the petitioner. In pursuance of the directives aforesaid, the matter was reconsidered and fresh order, impugned in this petition, has been passed which again cancels the election in question. 4. There is no dispute that before the result of election of Member from Ward No. 19 of Zila Panchayat Bareilly could be declared and the required certificate of declaration of result could be issued, the Commission cancelled the election but of course after counting of votes was over, which showed that the petitioner had secured 9824 votes, which were the highest amongst all the contesting candidates. 5. The aforesaid election has been cancelled by the Commission on a complaint made by one Naushe Khan alleging that the petitioner was not the resident of Gram Panchayat Girdharpur, but was the resident of another Gram Panchayat and she got her name included in the voter-list by committing fraud and manipulations. In fact, the name of the petitioner was not recorded as voter in the original voter-list of village Girdharpur, Ward No. 19, Tahsil Baheri, District Bareilly. She moved an application allegedly on 15.9.2010 for inclusion of her name in the voter-list of village Girdharpur, Ward No. 19, on which application, report of the Area Lekhpal was obtained. In fact, the name of the petitioner was not recorded as voter in the original voter-list of village Girdharpur, Ward No. 19, Tahsil Baheri, District Bareilly. She moved an application allegedly on 15.9.2010 for inclusion of her name in the voter-list of village Girdharpur, Ward No. 19, on which application, report of the Area Lekhpal was obtained. On the said report of Area Lekhpal, the Tahsildar/Assistant Electoral Officer (Panchayat), Baheri passed an order for inclusion of the petitioner’s name in the voter-list. Thus, under the orders of the Assistant Electoral Officer, for which a corrigendum was issued, the name of the petitioner was included in the final voter-list on 23.9.2010. 6. The petitioner filed her nomination for the office of Member of Zila Panchayat, Bareilly from the said Ward on 25.9.2010 as per the election schedule, on which objections were invited by the Election Officer, and after scrutiny of nomination papers on 26/27.9.2010, her nomination was found intact and she was allotted the election symbol of “Rising Sun” on 28.9.2010. The election was held on 11.10.2010 and the counting of votes was carried on 28/29.10.2010. 7. Even before the counting of votes had started, a notice dated 20.10.2010 was issued by the Additional District Magistrate (Administration) to the petitioner, saying that her name was recorded in various voter-lists of district Bareilly and the family of the petitioner was residing at the address of Mohall Shailani, P.S.Baradari, District Bareilly and in this regard, the enquiry was going on, wherein the petitioner was required to submit her explanation by 26.10.2010 alongwith supporting documents. This notice, which was allegedly sent at the address of the petitioner’s father-in-law, was received on 26.10.2010 and the same day, the petitioner prepared a detailed reply to the said notice denying the allegations and submitted the same, but without considering her reply, the election was cancelled. As already observed, the said order was challenged and on remand being made by the High Court, the matter was reconsidered by the Commission and the impugned order has been passed. 8. As already observed, the said order was challenged and on remand being made by the High Court, the matter was reconsidered by the Commission and the impugned order has been passed. 8. The Commission, on scrutiny of evidence and after seeing the original records, has recorded a finding that the petitioner was not the resident of village Girdharpur and that her name was not ordered to be recorded in the voter-list of village Girdharpur by the authority competent to do so, but the same was surreptitiously and fraudulently inducted in the corrigendum issued with respect to adding of three other names and as such the final publication of voter-list, in which the petitioner’s name was shown as voter of village Girdharpur, was not the outcome of any order passed by the competent authority but was a sheer manipulation and, therefore, she being not the elector/voter of village Girdharpur was not eligible for contesting the election from the said Ward. 9. Dr. L.P.Misra, assailing the aforesaid order passed by the Commission has mainly emphasized that the order impugned is wholly without jurisdiction and authority of the Commission, which does not fall within the ambit of Article 243-K of the Constitution nor under any provision of the U.P.Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961, therefore, the same is per se void and bad in law. 10. Learned counsel for the petitioner while vehemently opposing the plea of the respondents and the finding recorded by the Commission that by manipulation the name of the petitioner was inducted in the voter-list of village Girdharpur submitted that no fraud was ever committed by her as her name was included in the voter-list under the orders of the assistant electoral registration officer after being satisfied with the report submitted by the Area Lekhpal and the application and affidavit filed by the petitioner in support of her claim. 11. He also submitted that the Commission had no jurisdiction to enter into the aforesaid plea/complaint as there was no authority with the Commission to scrutinize the entries made in the final voter list, nor the petitioner’s nomination could have questioned or cancelled on the ground that her name was illegally inducted in the said list. 11. He also submitted that the Commission had no jurisdiction to enter into the aforesaid plea/complaint as there was no authority with the Commission to scrutinize the entries made in the final voter list, nor the petitioner’s nomination could have questioned or cancelled on the ground that her name was illegally inducted in the said list. Submission further is that once the petitioner’s name was shown in the final voter-list prepared by the electoral registration officer, which was issued before the date of nomination but after 8 days from the date of passing of the order of inclusion of her name, the same was not reviewable or questionable by the Commission. The Commission, according to the counsel, would be competent to conduct, supervise and control the election only from the date of issuance of notification of election till the result is declared, but it has no authority to delve on the issues which relate to a stage prior to the issuance of notification of election. 12. In the alternative, the argument is that in case any person was aggrieved by the election of the petitioner, the same could have been challenged only after declaration of result by means of an election petition on the ground that it was improper acceptance of her nomination, wherein the said plea could have been seen. 13. In response, Sri Raghvendra Singh, learned Senior Advocate appearing for the Commission submitted that this is not a case where the authority competent to correct the voter-list has included the name of the petitioner by any order passed by him, but the name of the petitioner was got included in the corrigendum order by manipulation, which was passed with respect to other three persons, therefore, it cannot be said that her name stood included in the voter-list of village Girdharpur so as to claim immunity from scrutiny by the Commission. Elaborating the aforesaid argument, it is submitted that in a case where the authority is competent to make amendments in the electoral roll, includes the name of a person who otherwise is not eligible for recording his name in the voter-list, may be on the ground of not being the resident or voter of that village or for any other reason, such an inclusion of his/her name, as the case may be, may not be questioned by the Commission, but where a person whose name has not been ordered to be included in the voter-list, gets his/her name included by fraudulent means, he/she cannot be said to be the voter of that village nor the name so mentioned in the voter-list can be said to be a name recorded by the authority empowered to correct the voter-list. That being so, the petitioner, who got her name so recorded in the voter-list could neither be treated as voter from the said Ward nor could be eligible to contest the election. Relying upon the case of K. Venkatachalam v. A. Swamickan and another, (1999) 4 SCC 526 , he submitted that it is only the elector who can contest the election and that if an ineligible person as aforesaid contests the election and is declared as elected, his election can still be challenged in writ jurisdiction and the Commission can also exercise its power to cancel such election. 14. In the case of K. Venkatachalam (supra), the Apex Court was considering the matter arising out of writ jurisdiction, where the election of a returned candidate under the Representation of People Act,1951 was challenged on the ground that he was not an elector and his name did not find place in the voter-list but he, taking advantage of similar name of another person, filed his nomination and was elected. The Single Judge dismissed the writ petition after holding that the petition was not maintainable in view of the specific provision of Article 329(b) of the Constitution, which prescribes that the only remedy was to file en election petition, but the Division Bench of the High Court set aside the election after holding that it was the election of a person, who was imposter taking advantage of the name of other person though his name was not recorded in the voter-list. The Supreme Court upholding the order passed by the Division Bench observed that a person who is not eligible to contest the election if allowed to continue to sit and vote in the Assembly, it would be a fraud on the Constitution. The relevant excerpt of the said report is as follows: “26. The question that arises for consideration is if in such circumstances the High Court cannot exercise its jurisdiction under Article 226 of the Constitution declaring that the appellant is not justified to be a Member of Tamil Nadu Legislative Assembly from Lalgudi Assembly Constituency. From the finding recorded by the High Court it is clear that the appellant in his nomination form impersonated a person known as “Venkatachalam, s/o Pethu” taking advantage of the fact that such a person bears his first name. The appellant would be even criminally liable as he filed his nomination on an affidavit impersonating himself. If in sch circumstances he is allowed to continue to sit and vote in the Assembly, his action would be a fraud on the Constitution. 27, .........Article 226 of the Constitution is couched in the widest possible terms and unless there is a clear bar to jurisdiction of the High Court its powers under Article 226 of the Constitution can be exercised when there is any act which is against any provision of law or violative of constitutional provisions and when recourse cannot be had to the provisions of the Act for the appropriate relief.” 15. Dr. L.P.Misra, on the other hand, relied upon the case of Laxmi Kant Bajpai v. Hazi Yaqoob and others, (2010) 4 SCC 81, in support of his plea that after the process of election starts, the elector roll cannot be scrutinized by the Commission and that even if the name of any person was illegally inducted in the voter-list, the same cannot be adjudicated upon by the Commission for whom the entries made in the electoral rolls are sacrosanct and on that ground the petitioner cannot be denied to contest the election nor the declaration of the result can be stopped. 16. In Laxmi Kant Bajpai (supra), the matter had arisen from an election petition. 16. In Laxmi Kant Bajpai (supra), the matter had arisen from an election petition. One of the main pleas of challenge was that the result of the election in favour of the elected candidate was materially affected by the improper reception of 23431 void votes as they were from 21 localities/colonies/mohallas outside the territorial boundaries of the constituency and that the aforesaid 21 localities did not form part of 381, Meerut Constituency as delimited by the 1973 Delimitation Order and yet were included within the constituency and the voters from these colonies were included in the electoral roll of the constituency. A further plea was raised that delimitation can be carried out only by the Delimitation Commission and yet in contravention of the published order of delimitation, the 21 colonies had been included in the constituency. Therefore the election was liable to be declared void on the grounds of Sections 100(1)(d)(iii) and (iv) of the Representation of the People Act, 1951. The Apex Court observed that the process and procedure of preparing electoral rolls is governed by the Registration of Electors Rules, 1960, Rule 24 of which prescribes special provision for preparation of rolls on redelimitation of constituencies, whereas Rule 22 speaks of final publication of roll and sub-section (2) of said Rule says that on such publication, the roll together with the list of amendments shall be the electoral roll of the constituency. Their Lordships further observed that hence, the electoral roll published becomes the electoral roll of the constituency, and therefore the electoral roll containing the names of people residing in the 21 localities was the final and valid electoral roll for Meerut Assembly Constituency. The alteration to the electoral roll can only be brought about by following the procedure prescribed in the relevant rules. 17. The Court further observed as under: “23. It is clear from the above discussion that the Courts cannot decide any issue relating to issuance or revision of an electoral roll. The remedy lies in the procedure laid down in the prescribed rules. There is scope for challenging the contents of the electoral roll. However, once an electoral roll is finally published, it becomes final and then no Court can interfere with the said publication of the electoral roll and it shall be the electoral roll of the constituency. 24. The remedy lies in the procedure laid down in the prescribed rules. There is scope for challenging the contents of the electoral roll. However, once an electoral roll is finally published, it becomes final and then no Court can interfere with the said publication of the electoral roll and it shall be the electoral roll of the constituency. 24. In this regard, reference can be made to the observations made by this Court in Shyamdeo Pd. Singh v. Nawal Kishore Yadav, (2000) 8 SCC 46 . The Court has observed that: (SCC p. 60, para 26). “26. .... inclusion of person or persons in the electoral roll by an authority empowered in law to prepare the electoral rolls, though they were not qualified to be so enrolled, cannot be ground for setting aside an election of a returned candidate under sub-clause (iii) or (iv) of clause (d) of sub-section (1) of Section 100 of the Representation of the People Act, 1951.” The Court has observed: (SCC pp. 58-59, para 20) “20. ...... the electoral rolls may contain errors and they may remain to be corrected or the appeals in respect thereof may be pending, the electoral roll effective for the ensuing election must achieve a finality at a given point of time (such as the last date prescribed for filing the nominations). It has to be remembered that right to contest an election, a right to vote and a right to object to an ineligible person exercising right to vote are all rights and obligations created by statute. They are not the rights in common law. Bringing into existence houses or institutions responsible for functioning of a democracy have a vital constitutional objective to achieve as they are so essential for the functioning of a democracy. A breach of any statutory right or obligation should not come in the way of the process directed towards fulfilling the high objective of bringing into existence of a house or institution contemplated by Constitution as enabling democratic functioning of the country.” 25. The Court has further observed: (Shyamdeo case, SCC p. 60, para 26) “26. A breach of any statutory right or obligation should not come in the way of the process directed towards fulfilling the high objective of bringing into existence of a house or institution contemplated by Constitution as enabling democratic functioning of the country.” 25. The Court has further observed: (Shyamdeo case, SCC p. 60, para 26) “26. To sum up we are of the opinion that inclusion of person or persons in the electoral roll by an authority empowered in law to prepare the electoral rolls, though they were not qualified to be so enrolled, cannot be a ground for setting aside an election of a returned candidate under sub-clause (iii) or (iv) of clause (d) of sub-section (1) of Section 100 of the Representation of the People Act, 1951. A person enrolled in the electoral list by an authority empowered by law to prepare an electoral roll or to include a name therein is entitled to cast a vote unless disqualified under sub-sections (2) to (5) of Section 62 of the Representation of the People Act, 1951. A person enrolled in the electoral roll cannot be excluded from exercising his right to cast vote on the ground that he did not satisfy the eligibility requirement as laid down in Section 19 or 27(5) of the Representation of the People Act, 1950.” 26. The Constitution Bench of this Court in Kunwar Nripendra Bahadur Singh v. Jai Ram Verma ((1977) 4 SCC 46), held that: (SCC p.161, para 25) “25. ....the finality of the electoral roll cannot be challenged in an election petition even if certain irregularities had taken place in the preparation of the electoral roll or if subsequent disqualification had taken place and the electoral roll had on that score (cannot be) corrected before the last hour of making nominations.” The Court further stated that: (SCC pp. 160-61, para 25) “25. ... After that deadline the electoral roll of a constituency cannot be interfered with and no one can go behind the entries except for the purpose of considering disqualification under Section 16 of the 1950 Act.” 18. Learned counsel for the petitioner also argued that in any case, no change, amendment or modification could be made in the electoral roll after the last date of filing of nomination papers was over. Learned counsel for the petitioner also argued that in any case, no change, amendment or modification could be made in the electoral roll after the last date of filing of nomination papers was over. The petitioner had filed her nomination on 25.9.2010 and it was for the first time on 20.10.2010, when the Additional District Magistrate (Administration) issued notice to the petitioner and as a matter of fact, it was a date after the election symbols were already allotted. That being the position, he contended that assuming that the Commission had found some fault in the entries of the electoral roll, neither the Electoral Registration Officer nor the Commission was having any jurisdiction or authority to correct such an entry after the last date of filing of the nomination papers was over. He relied on the observations made by the Apex Court in the case of Laxmi Kant Bajpai (supra) wherein the Court took notice of the case of Baidyanath Panjiar v. Sitaram Mahto, (1969) 2 SCC 447 , wherein it was held that the entries in an electoral roll of a constituency, as they stood on the last date for making the nominations for an election in that constituency should be considered as final for the purpose of that election. The Court observed as under: “60. In Lakshmi Chandra Sen v. A.K.M. Hassan Uzzaman ((1985) 4 SCC 689) this Court while discussing the scope of Section 23(3) of the Representation of the People Act, 1950 has state: (SCC pp. 702-03, para 19) “19. Section 23(3) of the Act of 1950 also points in the same direction. Under that provision, no amendment, transposition or deletion of an entry can be made under Section 22 and no direction for the inclusion of a name in the electoral roll of a constituency can be given, after the last date for making nomination for an election in the particular constituency. The election has to be held on the basis of the electoral roll which is in force on the last date for making nominations. If that were not so, the easiest expedient which could be restored to for the purpose of postponing an election to the legislature would be to file complaints and objections, omnibus or otherwise, which would take days and months to decide. If that were not so, the easiest expedient which could be restored to for the purpose of postponing an election to the legislature would be to file complaints and objections, omnibus or otherwise, which would take days and months to decide. It is not suggested that claims and objections filed in the prescribed for should not be decided promptly and in accordance with law. But, the important point which must be borne in mind is that whether or not a revision of an electoral roll is undertaken and, if undertaken, whether or not it is completed, the electoral roll for the time being in force must hold the field. Elections cannot be postponed for the reason that certain claims and objections have still remained to be disposed of. Then, claimants and objectors could even evade the acceptance of notices and thereby postpone indefinitely the decision thereon. The holding of elections to the legislatures, which is a constitutional mandate, cannot be made to depend upon the volition of interested parties.” 19. In response to the plea of the respondents that the Commission was having plenary and all residuary powers to ensure that free and fair election takes place in accordance with the statutory provisions under Article 243-K of the Constitution which is para materia to Article 324 of the Constitution, learned counsel for the petitioner has submitted that the Commission could have exercised its powers only from the stage of issuance of notification calling for election till the declaration of result and not for the happenings which took place before that or thereafter. In support of the aforesaid plea, he has placed reliance upon the case of V.S.Achuthanandan v. P.J.Francis and another, (1999) 3 SCC 737 . The Court in the said case observed, “The word “election” as used in the Representation of the People Act has been interpreted by this Court to mean “that every stage from the time the notification calling for elections is issued till the declaration of the result”. 20. Learned counsel for the petitioner has also relied upon the following cases: 1. Smt. Gulabi v. State Election U.P and others, 2008(1) ESC 105 (All)(DB); 2007(9) ADJ 291 . 2. Smt. Ram Kanti v. District Magistrate, Hamirpur and others, (1995) 2 UPLBEC 771. 3. Sunita Patel (Smt.) v. State of U.P and others, 2005 ADJ 595 (DB). 4. 20. Learned counsel for the petitioner has also relied upon the following cases: 1. Smt. Gulabi v. State Election U.P and others, 2008(1) ESC 105 (All)(DB); 2007(9) ADJ 291 . 2. Smt. Ram Kanti v. District Magistrate, Hamirpur and others, (1995) 2 UPLBEC 771. 3. Sunita Patel (Smt.) v. State of U.P and others, 2005 ADJ 595 (DB). 4. State of Punjab and others v. Bhajan Singh and another, (2001) 3 SCC 565 . 5. Kunwar Nripendra Bahadur Singh v. Jai Ram Verma and others, (1977) 4 SCC 153 . 6. Shyam Deo Prasad Singh v. Nawal Kishor Yadav, (2000) 8 SCC 46 and 7. Kanhaiya Lal Omar v. R.K.Trivedi and others, (1985) 4 SCC 628 . 21. The petitioner’s plea that once the counting of votes was over, the Commission was having no authority to look into the matter is devoid of merit. The Commission was having authority to look into the affairs from the stage the notification for election was issued till the declaration of the result and pass appropriate orders including the order cancelling or countermanding the elections. 22. The moot questions involved in the present case are: (i) Whether the Commission was having any power or authority to cancel the election of the petitioner on the ground that her name was fraudulently got inducted in the final voter-list though there was no order passed by authority competent to include her name in the said list? (ii) Whether any change could have been effected in the voter-list after the date of filing the nomination papers and if not, then whether the Commission could have resorted to such an attempt by indirect means saying that voter-list was fabricated or manipulated? (iii) Whether the Commission was competent to enter into the question of alleged fraud in the preparation of voter-list and that too at a stage when not only the nominations were accepted but election symbols were also allotted and the polling had actually been done? (iv) Whether the complaint filed by Naushe Khan was at all admissible, he admittedly being not the elector of that village? and (v) Whether Article 243-O places a bar to interference by Courts, as the aggrieved person could have filed the election petition only after the result was formally declared of the returned candidate? 23. (iv) Whether the complaint filed by Naushe Khan was at all admissible, he admittedly being not the elector of that village? and (v) Whether Article 243-O places a bar to interference by Courts, as the aggrieved person could have filed the election petition only after the result was formally declared of the returned candidate? 23. Challenge of election of a member of Zila Panchayat can be made only by approaching a forum prescribed under the Rules and normally not by filing a writ petition. Article 243-O of the Constitution prohibits any interference by Courts in electoral matters during the course of elections, unless they are completed. Improper acceptance of nomination of any person makes a valid ground for challenging the election by means of an election petition. 24. Before proceeding to discuss the legal issues, it would be relevant to understand the controversy actually raised and involved in the present writ petition. The petitioner admittedly was not recorded as a voter in the original voter-list of Gram Panchayat Girdharpur. Her name was inducted in the voter-list allegedly after the orders passed by the electoral registration officer by issuing a corrigendum, and after making an amendment in the voter-list, the same was finally published on 23.9.2010. The petitioner’s name was thus included, shown and published in the final electoral roll under the signatures of electoral registration officer on 23.9.2010. There is no dispute that this final publication of electoral roll on 23.9.2010 was done by an authority competent to issue such electoral rolls. 25. The dispute arose on the application/complaint made by Naushe Khan on 9.10.2010 saying that the petitioner was not a resident of village Girdharpur and that her name was wrongly recorded in the voter-list. On the said complaint of Naushe Khan, who was not an elector from the said village and who had also not given any affidavit in support of his application, the election was cancelled by the Commission after the counting was over vide order dated 30.10.2010, but on a challenge being made to the said order by the petitioner in writ jurisdiction, the said order was set aside by the High Court vide order dated 22.11.2010 after holding that the said order was passed without affording any opportunity to the petitioner. The Court further directed that fresh order be passed after giving opportunity to the petitioner. 26. The Court further directed that fresh order be passed after giving opportunity to the petitioner. 26. In the second phase of enquiry, various evidence were considered. The affidavit filed by Javed Anwar accompanying his application for addition of the names of his three sisters has been brought on record. The respondents’ case is that a bare perusal of the aforesaid application alongwith the affidavit dated 15.9.2010 shows that a clear manipulation has been done in the same as the names of Smt. Ayesha and one more person have been added though they were not members of Javed Anwar’s family. Evidently, the names of three persons were applied for being added in the voter-list but the names of Smt. Ayesha and one more person were added in the application and the affidavit. Contrary to this, the petitioner’s case is that the application and the affidavit showed the name of the petitioner also and on enquiry being made by the Area Lekhpal, necessary correction was done in the voter-list. The petitioner strongly refuted the plea of the respondents that the photocopies of the orders passed, by competent authority were prepared differently by the petitioner and her name was fraudulently and designedly included in the voter-list without there being any order passed by the electoral registration officer. 27. In support of the plea of fraud being played by the petitioner, attention of the Court has also been drawn by the respondents to the fact that the name of the petitioner as voter was recorded in the voter-list of another village. According to the respondents, one Javed Anwar moved an application before the Sub Divisional Magistrate on 15.9.2010 requesting therein that the names of his three sisters Noorjahan, Shabana and Shabnam have been struck off from the voter-list of village Girdharpur, though they reside in the same village. Their names were deleted on the reports of Naib Tahsildar Kanman and Block Development Officer, Damkhauda. On this application of Javed Anwar, two copies of the voter list alongwith the order passed by Tahsildar/Assistant Electoral Registration Officer, Baheri were submitted. The allegation is that the names of the petitioner and one more person Shahil were included alongwith the three sisters of Javed Anwar, for which a forged application is also on record. On this application of Javed Anwar, two copies of the voter list alongwith the order passed by Tahsildar/Assistant Electoral Registration Officer, Baheri were submitted. The allegation is that the names of the petitioner and one more person Shahil were included alongwith the three sisters of Javed Anwar, for which a forged application is also on record. In fact, Javed Anwar was handed over the order passed by the electoral registration officer for adding the name of his three sisters and by committing forgery in connivance with the officials, he added the names of two more persons, including the name of Smt. Ayesha in the said order. 28. The petitioner’s counsel refutes the allegation of fraud having been committed by the petitioner and has brought on record the application and the affidavit in support of his plea that it was a bona fide application for inclusion of the name of the petitioner, which was rightly ordered and implemented. 29. The respondents have also drawn the attention of the Court to the fact that the name of the petitioner was deleted from Gram Panchayat Gunah Hattu, district Bareilly and she herself filed an appeal before the District Magistrate, Bareilly on 13.9.2010 against the said order indicating herself to be a resident of Gram Panchayat Gunah Hattu and within a span of two days, another affidavit was submitted by Javed Anwar for inclusion of her name in the voter-list of Gram Panchayat Girdharpur showing her to be a resident of village Girdharpur. 30. Section 9(7) of the U.P. Panchayat Raj Act, 1947 prohibits the registration of any person in the electoral roll for any territorial constituency, if his name is entered in any electoral roll pertaining to any city, municipality or cantonment unless he shows that his name has been struck off such electoral roll. The argument is that the fact that the petitioner’s name was recorded in another electoral roll and when her name was struck off, she filed an appeal showing that she was a resident of Gram Panchayat Gunah Hattu and within two days in the affidavit filed by Javed Anwar she was shown to be a resident of village Girdharpur, where her name in the voter-list was added, shows that it was a manipulation done by the petitioner in connivance with certain persons, may be the officials/officers of the district administration and Javed Anwar. The question, therefore, arises whether such a plea can at all be looked into by the Commission after the final electoral roll was published by the electoral registration officer. 31. Under what authority, the Additional District Magistrate (Administration)/Electoral Registration Officer issued the notice dated 29.10.2010 calling for an explanation from the petitioner on the complaint made by Naushe Khan could not be shown by the respondents. May be that even if he was not a voter from the Gram Panchayat Girdharpur and his application was not supported by an affidavit, cognizance could have been taken by the Commission, but in what manner the Additional District Magistrate was competent to take cognizance of such a complaint requires an explanation, which is missing. To enter into the enquiry about the entry in the voter-list, it was essential first to have jurisdiction to entertain the complaint. There being no dispute that final electoral roll was published under the signatures of the competent authority, there was no scope for the Additional District Magistrate (Administration) to initiate the enquiry. The Commission also could not have gone into the said enquiry. The election was to be held on the basis of final electoral roll published by the electoral registration officer, and for that matter, the district election officer, the returning officer and the Commission were having no authority to go beyond that. If the petitioner had got her name included by manipulation and fraud in the final voter-list, that was an issue which could have been raised in the election petition on the pleas that she was not a resident of the said village and she being not a bona fide voter and inclusion of her name by adopting fraudulent tactics would not entitle her to contest the election and that it was a case of improper acceptance of her nomination. The matter required adjudication by the competent authority and not by the Commission. 32. It was also permissible to challenge the election in any other appropriate forum, may be in writ jurisdiction also. 33. As observed above, the correction in the electoral roll was made before the process of election had started, which entry could not be changed after the date of filing of nomination papers. The commission was not competent to look into the matter which did not fall within the term ‘election’, to which Article 243-K applies. 34. 33. As observed above, the correction in the electoral roll was made before the process of election had started, which entry could not be changed after the date of filing of nomination papers. The commission was not competent to look into the matter which did not fall within the term ‘election’, to which Article 243-K applies. 34. The name of the petitioner, thus having been recorded in the final electoral roll published on 23.9.2010 under the signatures of the competent authority, could not have been cancelled by the petitioner on the aforesaid ground of alleged fraud not after only when her nomination was accepted but counting of votes had also been done. This Court would not judge the merit of the order passed by the Commission, but can certainly look into the decision making process which apparently was not in consonance with the provisions of law. We are, therefore, of the view that the impugned order passed by the Commission is liable to be set aside, which is hereby set aside. 35. Consequent to the order aforesaid, the Commission is directed to declare the result of the petitioner’ election and she would be entitled to hold the office of Member of Zila Panchayat, Bareilly. In the meantime, if any fresh election has been scheduled for the office of Member in question, the same shall not be given effect to. It would be open to any person aggrieved to challenge the election of the petitioner before the appropriate forum, and if such a challenge is made, the present order will not come in way. 36. The writ petition stands allowed. No costs. ——————