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2014 DIGILAW 2095 (RAJ)

Mushe Khan v. State of Rajasthan

2014-12-11

PRAKASH GUPTA, SUNIL AMBWANI

body2014
JUDGMENT : Mr N.M. Lodha, Adovcate General assisted by Mr Rajesh Panwar, Addl. Advocate General and Mr Vikas Balia, for the Rajasthan Election Commission. …...for the respondents …........ 1. We have heard learned counsel appearing for petitioners, learned Advocate General for the State of Rajasthan and Mr Vikas Balia for the Rajasthan State Election Commission. 2. In these writ petitions, filed before learned Single Judge, an interim order was passed as follows: “In the meanwhile and until the next date, the State Government shall not finalise and notify the division of wards/constituencies of re-constituted/newly created Gram Panchayats and Panchayat Samities in question pursuant to the impugned Notification No. ,Q- 15¼1½ iquxZBu@fof/k@ijkfo@2014@1473 t;iqj] dated 05.11.2014.” 3. We are informed that writ petitions, raising almost similar question, were filed in Jaipur Bench of the High Court, where the hearing was concluded and the judgment is reserved. There is no interim order passed by the Division Bench of this Court at Jaipur Bench. 4. When these matters came up for hearing before learned Single Judge, he was of the opinion that since the notifications, by which the exercise of delimitation of wards was being carried out, are legislative in character, and such matters, in view of the orders passed by the then Chief Justice on 28.2.2011, should be heard by a Division Bench; all the matters be listed before the Division Bench for hearing. 5. After hearing the learned counsel appearing for the parties at length, we reserve the judgment, to be pronounced at an early date. 6. Learned Advocate General and learned counsel appearing for the Rajasthan State Election Commission have prayed to vacate the interim orders dated 20.11.2014, which has the effect of staying the entire election process for constitution of Gram Panchayats in the State of Rajasthan. 7. It is submitted by learned counsel appearing for the Rajasthan State Election Commission that five years' term prescribed under Article 243E of the Constitution of India, which provides that duration of Panchayats to be of five years from the date appointed for its first meeting, is coming to an end in the State of Rajasthan on 23rd January, 2015. There is very little time left to complete the statutory process of preparing electoral rolls, issuing notifications and fixing dates giving minimum prescribed period for nominations and for dates of polling for holding elections. 8. There is very little time left to complete the statutory process of preparing electoral rolls, issuing notifications and fixing dates giving minimum prescribed period for nominations and for dates of polling for holding elections. 8. Learned Advocate General and learned counsel appearing for the Rajasthan State Election Commission have drawn the attention of the Court to Article 243-O of the Constitution of India, which has been incorporated in the Rajasthan Panchayati Raj Act, 1994 as Section 117 and which bars the Courts to interfere in electoral matters. It is submitted that Article 243-O is included in Part-IX of the Constitution of India providing for the Panchayats. The bar to interference by Courts includes (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 and further provides in (b) that 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. Article 243-O of the Constitution of India provides as follows:- “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.” 9. Learned Advocate General states that in all the districts of Rajasthan except 2 or 3 districts, the notifications for delimitation of wards have been issued and that since elections are imminent and have to take place on or before 23rd January, 2015, this Court may vacate the interim orders, to allow the election process to be completed in accordance with the provisions of the Constitution of India. 10. 10. Having considered the arguments advanced at the Bar and the objections, which have been raised by learned Advocate General and learned counsel appearing for the Rajasthan State Election Commission, we are of the view that interim orders which may have the effect on the Panchayat Elections for constitution of the Gram Panchayats and Panchayat Samitis should not be allowed to continue at this stage. We are not impressed with the arguments that the re-constitution of wards, carried out without following the statutory process and in which the orders on the objections raised by the petitioners have not been passed giving reasons and are affected by the malafides of the political leaders, is sufficient ground to interfere with the subject Notifications. The Notifications for reconstitution of the wards/constituencies of the reconstituted/newly created Gram Panchayats and Panchayat Samitis has been carried in almost all the districts in the State of Rajasthan and the elections are imminent to be held in the entire State before 23rd January, 2015. It is thus not in public interest, to pass any order, which may have the effect of delaying and postponing the elections. It is also not permissible, for the Court, after the insertion of Article 243-O of the Constitution of India, to cause any interference in the process of the elections of Panchyayats. 11. The interim orders passed by learned Single Judge are hereby vacated and all the stay applications are rejected. A copy of this order will be placed in all the connected files.