Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 3692 (ALL)

POONAM v. ELECTION TRIBUNAL/SPL. JUDGE/A. D. J.

2016-11-11

SUNEET KUMAR

body2016
JUDGMENT Hon’ble Suneet Kumar, J.—Heard Sri H.N. Singh, Senior Advocate assisted by Sri Jayant Prakash, learned counsel appearing for the petitioner and Sri Jagdev Singh and Sri Pankaj Kumar, learned counsel appearing for the second respondent. 2. The petition is being decided, on consent, without calling for counter-affidavit. 3. Petitioner contested election of member Zila Panchayat, Ward No. 5 and was declared elected. The election was held on 13 October 2015 and the result was declared on 1 November 2015. Apart from the petitioner 16 other contestants were elected. Second respondent who secured 4206 votes, was second to the petitioner who secured 4428 votes, therefore, was declared elected by a margin of 222 votes. The election of the petitioner was subjected to challenge in an election petition being Petition No. 2 of 2015 before the Election Tribunal/Special Judge/Additional District Judge, Bijnor. 4. The assertion made in the election petition primarily pertains to irregularity in counting and no other ground of corrupt practice was taken. The relief claimed was for recounting, upon declaring the election of the petitioner void. Petitioner contested by filing written statement denying the allegations, to which replication was filed. Second respondent/election petitioner filed an amendment application (Paper No. 87-Ka) on 11 May 2016 to insert para 19-Ka & 19-Kha to the election petition asserting that since the petitioner is a voter recorded in Nagar Palika Nagina, District Bijnor and her name is also recorded as voter in Gram Panchayat Baghala, as such, she was not competent to participate and contest the election of Zila Panchayat being recorded as voter from two places. 5. Petitioner filed her objection to the amendment application, inter alia, stating that it was time barred; further, wrong entry of name in the electoral list cannot be a ground to assail the election. The tribunal by the impugned order dated 24 September 2016 allowed the amendment application for the reasons that the nature of election petition would not change by allowing the proposed amendment. The order is being challenged by means of the present petition. 6. The tribunal by the impugned order dated 24 September 2016 allowed the amendment application for the reasons that the nature of election petition would not change by allowing the proposed amendment. The order is being challenged by means of the present petition. 6. Learned Senior Counsel appearing for the petitioner would submit: (i) pleadings of election petition would have to be strictly construed; (ii) election petitioner by amendment can only supplement the grounds already pleaded but cannot take a new ground; (iii) proviso to Order VI Rule 17 CPC would bar the amendment as admittedly application was filed after framing of issues; (iv) the amendment proposed is not necessary to decide the controversy between the parties. In rebuttal, learned counsel appearing for the second respondent would submit : (i) provisions of CPC is applicable on election petition, therefore, amendment of pleadings can be made at any stage; (ii) proviso to Order VI Rule 17 would not be an impediment to refuse amendment; (iii) admittedly, petitioner was enrolled in the electoral roll from two places, therefore, the election is void; and (iv) in the interest of justice, to determine the real controversy between the parties, amendment was necessary. Rival submissions fall for consideration. Before proceeding to consider the rival contentions on merit, it would be apposite to examine the statutory provisions. 7. The Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 (Adhiniyam 1961 was enacted to provide for the establishment of Kshettra Panchayat and Zila Panchayat in Uttar Pradesh. Section 17 provides for establishment of Kshettra Panchayat and Zila Panchayat for each district. Section 18 provides for composition of Zila Panchayat. Sub-Section (1)(b) provides for election of members to be chosen by direct election from territorial constituencies in the Panchayat area divided into territorial constituencies having a population of fifty thousand. Section 6-B provides for electoral rolls for Kshettra Panchayat, which shall consist of the electoral rolls prepared under Section 9 of the United Provinces Panchayat Raj Act, 1947 for all territorial constituencies of a Gram Panchayat. Section 6-B provides for electoral rolls for Kshettra Panchayat, which shall consist of the electoral rolls prepared under Section 9 of the United Provinces Panchayat Raj Act, 1947 for all territorial constituencies of a Gram Panchayat. Section 18-B provides for electoral roll for Zila Panchayat which shall consist of the electoral rolls for all such territorial constituencies of a Kshettra Panchayat as comprised within the territorial constituencies of Zila Panchayat and it shall not be necessary to prepare or revise separately the electoral roll for any such territorial constituency of Zila Panchayat provided that any correction, addition or deletion made in the electoral roll after the last date for making nomination for elections to the Zila Panchayat and before the completion of that election shall not be taken into consideration for the purpose of that election. Section 18-C confers right to vote etc., except as otherwise provided by or under Adhiniyam 1961, every person whose name is for the time being, included in the electoral roll for the territorial constituency of a Zila Panchayat shall be entitled to vote at any election thereto and be eligible for election to the membership or to any office in the Zila Panchayat. Section 9 of Uttar Pradesh Panchayat Raj Act, 1947 provides for preparation of electoral roll for each territorial constituency. Sub-Section (1) mandates electoral roll for each territorial constituency of a Gram Panchayat, shall be prepared, in accordance with the provisions of the Act and the Rule made thereunder, under the superintendence, direction and control of the State Election Commission. Sub-Section (2) provides for publication of the electoral roll referred to in Sub-Section (1), which shall be published in the prescribed manner and upon its publication it shall, subject to any alteration, addition or modification made, in accordance with the Act and Rule made thereunder, be the electoral roll for that territorial constituency prepared in accordance with the provisions of the Act. Sub-Section (4) provides for disqualification of a person for registration in an electoral roll, if he— (a) is not a citizen of India; or (b) is of unsound mind and stands so declared by a competent Court; or (c) is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections. Sub-Section (6) provides that no person shall be entitled to be registered in the electoral roll for more than one territorial constituency or more than once in the electoral roll for the same territorial constituency. Sub-Section (7) provides no person shall be entitled to be registered 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. Sub-Section (8) provides where the Electoral Registration Officer or Assistant Electoral Registration Officer is satisfied after making such inquiry as it may deem fit, whether on a application made to it or on its motion, that any entry in the electoral roll should be corrected or deleted or that the name of any person entitled to be registered should be added in the electoral roll, it shall, subject to the provisions of the Act and Rules and Orders made thereunder, correct, delete or add the entry, as the case may be, provided no such correction, deletion or addition shall be made after the last date for making nominations for an election in the Gram Panchayat and before the completion of that election. Sub-Section (12) provides no Civil Court shall have jurisdiction— (a) to entertain or adjudicate upon the question whether any person is or is not entitled to be registered in an electoral roll for a territorial constituency; or (b) to question the legality of any action taken by or under the authority of the State Election Commission or of any decision given by any authority or Officer appointed in this behalf in respect of preparation and publication of electoral rolls. 8. In exercise of powers conferred under sub-Section (2) of Section 9 and Section 110 of the United Provinces Panchayat Raj Act, 1947, the U.P. Panchayat Raj (Registration of Electors) Rules 1994 was framed. Rule 2 (e) defines ‘’roll’ which means the electoral roll for a territorial constituency of a Gram Panchayat. Rule 5 provides for preparation of rolls by the Electoral Registration Officer. Rule 8 provides for publication of rolls in draft. Rule 2 (e) defines ‘’roll’ which means the electoral roll for a territorial constituency of a Gram Panchayat. Rule 5 provides for preparation of rolls by the Electoral Registration Officer. Rule 8 provides for publication of rolls in draft. Rule 10 provides for objections to entries in the roll by any person whose name is entered in the roll of a territorial constituency of a Gram Panchayat, and who objects to the inclusion of the name of any other person in the roll on the ground that he is not qualified or has been disqualified to be registered in such roll, may apply in Form 4 to the Assistant Electoral Registration Officer for correction of the particulars, or exclusion of the name, as the case may be. Rule 16 provides for inquiry into claims and objections and Rule 19 provides for final publication of roll, which on such publication the roll together with the list of amendments shall be the electoral roll for the territorial constituency. Rule 21-A provides for appeals from orders deciding claims and objections. Sub-rule (4) provides every decision of the appellate officer shall be final, and it shall take effect only from the date of the decision of appeal. 9. It is, therefore, evident from the provisions of Adhiniyam 1961, U.P. Panchayat Raj Act and the Rules framed thereunder that a complete mechanism is provided for preparation of rolls, which is subject to any objection, complaint regarding entry/deletion of names in the rolls. Appeal is provided to an aggrieved person. Upon publication of electoral roll, finality is attached to the rolls, which is not subject to challenge before Civil Court. A wrong entry in the rolls is not a disqualification to contest election, nor any correction, deletion or addition can be made after the last date of nomination for election and before the completion of election. Section 27 of Adhiniyam, 1961 provides for settlement of disputes as to membership or disqualification. Sub-Section (1) provides that the dispute, if any, arises as to whether a particular person is a member of the Zila Panchayat under clause (a) of Section 18, the dispute shall be referred in the manner prescribed. Section 27 of Adhiniyam, 1961 provides for settlement of disputes as to membership or disqualification. Sub-Section (1) provides that the dispute, if any, arises as to whether a particular person is a member of the Zila Panchayat under clause (a) of Section 18, the dispute shall be referred in the manner prescribed. Sub-Section (2) provides that the dispute that could be referred in the event such a dispute arises as to whether a person— (a) has been lawfully chosen a member of a Zila Panchayat under Section 18; or (b) has ceased to remain eligible for being chosen a member of the Zila Panchayat for the purpose of Section 20; or (c) ... ... ... In exercise of power conferred under Section 237 read with Section 27 of Adhiniyam 1961, The Uttar Pradesh Zila Panchayats (Settlement of Disputes Relating To Membership) Rules, 1994 was framed. Rule 4 provides for manner of raising disputes under Section 27(2)(a) and (b). Sub-rule (1) provides a dispute arises as to whether a person has been lawfully chosen under clause (b) of sub-section (1) of Section 18 the matter shall be referred by means of a written petition to the Judge within thirty days of the date of choosing. Sub-rule (3) requires every petition under sub-rule (1) or sub-rule (2) shall be presented in person by the petitioner, and if there are more than one petitioner by any or all of them. Rule 5 provides form, etc., of petition to be presented under Rule 4 which shall state the grounds on which the member of the Zila Panchayat is alleged to have been wrongly chosen or is alleged to have ceased to remain eligible to be a member. Rule 6 provides for relief that may be claimed by the petitioner who may claim any or all of the following reliefs— (a) that the choosing of a person as member of the Zila Panchayat is void, or that the member concern has ceased to remain eligible for such membership; and (b) that the choosing of a person as a member is void and that he himself or any other candidate has been duly chosen. Rule 11 provides for the procedure before the Judge. Rule 11 provides for the procedure before the Judge. Sub-rule (1) provides that except so far as provided by the Act or in these Rules, the procedure provided in Civil Procedure Code, 1908 in regard to suits shall in so far as it is not inconsistent with the Act or any provisions of these rules and it can be made applicable, be followed in the hearing of the petitions. Having noticed the statutory provisions, I proceed to consider the rival submissions. 10. Admittedly, on reading the whole election petition, sole ground was raised pertaining to irregularities and corrupt practice involved in the counting of votes, which is the basis and foundation for seeking to declare the election of the petitioner void. Admittedly, amendment application was moved after framing of issues, which sought to incorporate a new ground, that is, since the petitioner is enrolled from two places, therefore, his election is void. It is further averred in the application that this fact was not in knowledge of the election petitioner at the time of institution of petition, therefore, it is contended that in view of the provisions of Order VI Rule 17, the amendment was rightly allowed by the tribunal as it was necessary for the purpose of determining “real question in controversy” between the parties. Election petition is not a suit, therefore, pleadings and the grounds taken at the time of institution of the election petition has to be strictly construed. There is limitation provided for filing of the election petition, which is not condonable under the Adhiniyam, 1961, therefore, the grounds already taken can be supplemented, but no additional ground, if not already taken, can be added by way of amendment. If permitted, there would be no end to the proceedings. The question, therefore, is as to whether a name wrongly entered in the electoral roll can be a ground for setting aside the election of the returned candidate, and if it is so, whether it can be incorporated at the stage when the trial has commenced, i.e. after framing of the issues. 11. Sub-Section (4) of Section 18-C provides for disqualification of a person for registration in an electoral roll which, inter alia, disqualifies a person from enrollment; if for the time being he is disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections. 11. Sub-Section (4) of Section 18-C provides for disqualification of a person for registration in an electoral roll which, inter alia, disqualifies a person from enrollment; if for the time being he is disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections. It is not the case of the election petitioner that the petitioner is disqualified from voting as no instance of disqualification for any corrupt practice or any other offence was pleaded. The only plea that was taken in the amendment application that the petitioner was on the rolls from two places. Sub-Section (6) of Section 18-C prohibits registration of a person in electoral roll for more than one territorial constituency, and Sub-Section (7) prohibits entitlement of a person from being registered 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 his name is struck off from such electoral roll. Sub-Section (8) read with Sub-Section 12 would attach finality to electoral roll, duly prepared and upon final publication. The jurisdiction of Civil Court to entertain or adjudicate upon the question whether any person is or is not entitled to be registered in an electoral roll is barred. 12. Therefore, it is evident from the statutory provisions that preparation of electoral roll is distinct and a separate mechanism is provided, which attains finality upon publication. Therefore, entries in the roll cannot be questioned before a Court; the same entries cannot be a ground to declare the election of the returned candidate void. Only two grounds have been provided under Rule 6 on which election petition can be filed (1) the choosing of a person is void; and (2) the concern member ceased to remain eligible for such membership. Therefore, inclusion of a person from two constituencies or from municipality, city could render an election automatically void, is not the mandate of the statutory provisions. Section 18-C further provides that a person whose name has been included in the electoral roll for the territorial constituency of a Zila Panchayat shall be entitled to vote and be eligible for election to the membership or to any office in the Zila Panchayat. Sub-Section (2) of Section 18-C does not carve out any exception but Sub-Section (4) merely provides for disqualification of a person for registration. Sub-Section (2) of Section 18-C does not carve out any exception but Sub-Section (4) merely provides for disqualification of a person for registration. None of the grounds therein has been set up against the petitioner. Sub-Section (7) merely prohibits a person from being registered in the electoral roll from two constituencies or in case his name is already entered in any city or municipality, in the event of such entry, the person would not automatically become disqualified. The remedy available, is to file objection before the Electoral Registration Officer and get the electoral roll corrected. Therefore, in my opinion the election petition cannot be instituted for wrongly including the name of a person duly elected in the electoral roll. 13. Supreme Court in Shyamdeo Pd. Singh v. Nawal Kishore Yadav, (2000) 8 SCC 46 , held that inclusion of a 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 The Constitution Bench in Hariprasad Mulshanker Trivedi v. V.B. Raju, (1974) 3 SCC 415 , held that finality of 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 not been corrected before the last hour of making nominations. 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. The aforementioned judgments have been referred with approval by the Supreme Court in Laxmi Kant Bajpai v. Haji Yaqoob, (2010) 4 SCC 81 . Division Bench of this Court in Modi v. State Election Commissioner, 2001 All CJ 419, while considering the provisions of U.P. Panchayat Raj (Registration of Electors Rules), 1994, framed under the U.P. Panchayat Raj Act held that the provisions of the Act and the Rules, thus provide a complete safeguard against any wrong inclusion or wrong omission of name in the electoral roll. After publication of the final roll, the same is immune from any challenge at a subsequent stage. Once the process of election has begun they can neither be challenged by means of a writ petition under Article 226 of the Constitution nor in an election petition filed under Section 12-C of the U.P. Panchayat Raj Act. 14. The next issue, as to whether amendment could be brought about at any stage of election proceedings to incorporate a new ground, in my opinion, such an amendment could not have been allowed after framing of issues. The grounds taken in the election petition for setting aside an election or declaring it void can only be supplemented and no fresh ground can be added for the reason that any amendment is allowed that would relate back to the date of institution of election petition, therefore, the ground which was not taken earlier, cannot be subsequently incorporated as that would render the limitation provided for instituting the election petition redundant. Order VI Rule 17 would have limited application in an election petition instituted under Adhiniyam 1961 and the Rules framed thereunder. The expression “determines the real question in controversy between the parties” under Order VI Rule 17 is limited to the grounds already taken. In the facts of the present case, the ground taken in election petition at the time of institution of the petition, i.e. irregularities committed by the officials during counting of votes, therefore, amendment could only have been brought to supplement the assertion pertaining to counting of votes and no other ground could have been added or taken, subsequently. Further, proviso to Order VI Rule 17 prohibits amendment after commencement of trial. Trial of an election petition would commence after issues are framed. It is admitted by the respondent-election petitioner that the amendment was filed after framing of the issues. Tribunal has power under Order VI Rule 17 to order amendment of a petition, but that power cannot be exercised so as to permit new grounds or charges to be raised or to so alter its character as to make it in substance a new petition, a fresh petition on those allegations will then be barred. The principle as enshrined under the Representation of the People Act, 1951 would be applicable to the election petition subject to the provisions of the Adhiniyam, 1961 and Rules. The principle as enshrined under the Representation of the People Act, 1951 would be applicable to the election petition subject to the provisions of the Adhiniyam, 1961 and Rules. (Ref: Harish Chandra Bajpai v. Triloki Singh, AIR 1957 444). Therefore, in my opinion, the tribunal erred in mechanically allowing the amendment application. 15. The proviso to Order VI Rule 17 of the Code was inserted by the Civil Procedure Code (Amendment) Act, 2002 w.e.f. 1 July 2002, is in the mandatory form and curtails the jurisdiction of the Court to allow an amendment after the trial has commenced. However, there is an exception to this proposition, that is, the Court may allow an amendment even after the commencement of the trial if it comes to the conclusion that in spite of due diligence, the party seeking the amendment could not have raised the matter before the commencement of the trial. However, this exception would sparingly apply to an election petition, but in no case the amendment can be allowed on commencement of trial, for the reason that election petition is instituted by the person himself, therefore, a presumption is drawn that he is aware of all the grounds pertaining to corrupt practice. In Vidyabai and others v. Padmalatha and another, AIR 2009 SC 1433 , Supreme Court has very clearly held that for the purpose of the proviso to Order VI Rule 17 of the Code the relevant date for the commencement of the trial is the date on which issues are framed. The expression “commencement of trial” as contemplated by proviso to Order VI Rule 17 has a meaning different from the meaning assigned to that expression under the Representation of People Act, 1951. 16. Submission of learned counsel for the respondent that the the amendment under Order VI Rule 17 can be exercised at any stage of the proceedings, in the interest of justice, cannot be accepted mechanically in case of election petition. It is true that the amendment cannot be claimed as a matter of right and under all circumstances, the concept of adopting liberal view particularly in case whether other side can be compensated with the costs cannot be applied to amendment of the election petition at any stage of proceeding, but, certainly, can be allowed before commencement of trial. (Ref: Chandra Narain Tripathi v. Kapil Muni Karwariya, (2011) 88 ALR 548). (Ref: Chandra Narain Tripathi v. Kapil Muni Karwariya, (2011) 88 ALR 548). The Supreme Court in Smt. Ganga Bai v. Vijay Kumar and others, 1974 (2) SCC 393 , held as follows: “The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the Court.” Having considered the statutory provisions and statement of law, I am of the opinion, that inclusion or omission of a name in the electoral roll is immune from challenge at the subsequent stage after publication of final roll. Once the process of election has begun, the entries in electoral roll cannot be challenged in an election petition. The trial of election petition commences upon framing of issues, thereafter, any amendment seeking to incorporate a new ground is not permissible under Order VI Rule 17. The amendment can be brought about before the stage of framing of issues. 17. For the law and reason stated herein-above, the petition deserves to be allowed. The impugned order dated 24 September 2016 passed by the Election Tribunal/Special Judge/Additional District Judge, Bijnor, on Application No. Ka-87, filed in Election Petition No. 02 of 2015 (Rabiya v. Poonam) is set aside. The amendment application (Paper No. 87-Ka) consequently stands rejected. The Court to proceed in accordance with law. Accordingly, the writ petition stands allowed. No order as to costs.