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2016 DIGILAW 294 (JHR)

Rajendra Kumar Gupta v. State of Jharkhand

2016-02-09

APARESH KUMAR SINGH

body2016
ORDER : 1. Heard learned counsel for the parties. 2. Petitioner is aggrieved by the notice of election for the post of Up-Mukhiya scheduled on 10th February, 2016 for Debo Gram Panchayat under Chauparan Block, District Hazaribagh as contained in Annexure-5 dated 1st February, 2016 issued by Electoral Officer (Up-Mukhiya)-cum Block Development Officer, Chauparan. 3. According to the petitioner, in the election exercise for Up-Mukhiya of Debo Panchayat as per the date and time schedule prescribed by the District Electoral Officer-cum-Deputy Commissioner, Hazaribagh, petitioner was the sole candidate, who has offered nomination within the time between 9.30 to 10.00 A.M. of 8th January, 2016. However, as the respondent no. 4, Election Officer, (Up-Mukhiya)-cum-Circle Officer, Chauparan, Hazaribag, Jharkhand reports vide letter no. 43 dated 8th January, 2016 that supporter of one Rina Devi, ward member started creating nuisance at about 10.05 a.m. insisting upon the respondent no. 4 to accept the nomination of said Rina Devi also after the time for nomination by 10.00 a.m. had expired. It is submitted that petitioner remained as the sole candidate who should have been declared elected thereafter but he has been surprised to find that date for reelection of Up-Mukhiya of said Debo Panchayat has been announced. Petitioner has a right to be elected and has been arbitrary denied the same. 4. Learned senior counsel for the petitioner states that he was declared as Up-Mukhia which would be evident from CD/Compact Disc of photography conducted of election exercise in the said panchayat at the relevant point of time. Learned senior counsel for the petitioner has relied upon the provisions of Rule 94 of Jharkhand Panchayat Raj Act, 2001, as per which he should have been declared elected unopposed. Petitioner has approached this Court in a rush, as no decision has been taken on his representation made on 3rd February, 2016 before respondent no. 3, Deputy Commissioner-cum-District Election Officer, Hazaribagh (Annexure-6) after announcement of fresh election. He has sought declaration of being elected as Up-Mukhiya of the said Panchayat. 5. Learned counsel for the State Election Officer and the State have resisted the prayer. Learned counsels have also referred to the provisions under Chapter XII of 2001 Rules, which relates to the electoral exercise for the post of Up-Mukhiya/Up-Pramukh etc. He has sought declaration of being elected as Up-Mukhiya of the said Panchayat. 5. Learned counsel for the State Election Officer and the State have resisted the prayer. Learned counsels have also referred to the provisions under Chapter XII of 2001 Rules, which relates to the electoral exercise for the post of Up-Mukhiya/Up-Pramukh etc. They pointed out that mere filing of the nomination by the petitioner does not amount to completion of procedure prescribed before declaration of a candidate as elected unopposed is to be made. The procedure prescribed under the time schedule indicated vide Annexure-1 dated 28th December, 2015 by the District Electoral Officer did specify the steps such as scrutiny, withdrawal of nomination, preparation of list of candidates and thereafter actual exercise of votes by the electoral body. 6. In the present case, as per Annexure-3 enclosed by the petitioner himself, no such requirements were satisfied as remaining process could not be carried out on account of the situation created at the election office by allegedly supporter of another Ward Member, Rina Devi. Therefore, petitioner could not straightway seek declaration of his election as unopposed. It is submitted that the election exercise of Up-Mukhiya is carried out amongst the elected members of Gram Panchayat and has limited electoral body in that sense. Petitioner would have also a chance to participate in the fresh election process of Up-Mukhiya which is to be done in accordance with law and the procedure prescribed. 7. Learned senior counsel for the petitioner submits that the procedure relied upon by learned counsel for the respondents would be of no legal consequence as in the absence of any other participating candidate who would have filed a nomination paper, there was no requirement of preparation of the list of candidate amongst whom the election would be required to be carried out. In such situation, petitioner being without any other remedy has been compelled to approach this Court in the present petition. Provisions of Section 151 of Jharkhand Panchayat Raj Act would not apply as there has been no valid election against whom petitioner if aggrieved could have moved before the appropriate Forum. 8. I have considered the submission of the parties in the light of the relevant materials facts pleaded and the provisions contained in the Act and Rules 2001. Provisions of Section 151 of Jharkhand Panchayat Raj Act would not apply as there has been no valid election against whom petitioner if aggrieved could have moved before the appropriate Forum. 8. I have considered the submission of the parties in the light of the relevant materials facts pleaded and the provisions contained in the Act and Rules 2001. From the pleadings on record, it is evident that the process of election leading to actual exercise of votes and declaration of the election of a candidate contemplated not only filing of nomination papers but their scrutiny also and other steps such as withdrawal of nomination, preparation of list of eligible candidate etc. As is clear from Annexure3, communication of respondent no. 4, Election Officer, (Up-Mukhiya)-cum-Circle Officer, Chauparan, Hazaribag, Jharkhand immediately after filing of the nomination papers, no such exercise could be carried out on account of the situation and mischief created by the supporter of one Rina Devi, Ward Member. The stage did not reach where scrutiny of nomination papers of the petitioner would have been carried out to verify whether he fulfills all prescribed requirement of Act and Rules, 2001 and his application for nomination contains all relevant particulars, details etc. In the absence of these statutory requirement, it is not correct on the part of the petitioner to claim that a right accrued in his favour for declaration of his result as elected unopposed. The matter was reported on the same date by the respondent no. 4 to the respondent no.3, Deputy Commissioner-cum-District Election Officer, Hazaribagh whereafter a fresh election exercise has been announced for the same post of Up-Mukhiya of Debo Panchayat by the impugned notice at Annexure5. Therefore, the claim of the petitioner for declaration that he is elected unopposed to the post of Up-Mukhiya is not tenable in law as well as on facts. On the other hand, petitioner, if eligible is entitled to participate in the fresh election exercise for the said post. It would not be out of place to observe here that if the sanctity of electoral process has been vitiated on account of the fact referred to Annexure3, the decision of the District Electoral Officer to undertake a fresh exercise for election to the same post cannot be said to be arbitrary, unreasonable or whimsical. 9. It would not be out of place to observe here that if the sanctity of electoral process has been vitiated on account of the fact referred to Annexure3, the decision of the District Electoral Officer to undertake a fresh exercise for election to the same post cannot be said to be arbitrary, unreasonable or whimsical. 9. Therefore, this Court is not satisfied that any grounds for interference are made out in the writ petition. Accordingly, the writ petition is dismissed. Petition dismissed.