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2017 DIGILAW 2081 (JHR)

Rita Devi v. State of Jharkhand

2017-12-04

RAJESH SHANKAR

body2017
ORDER : RAJESH SHANKAR, J. 1. No one appears on behalf of the petitioner to press the present writ petition despite repeated calls. Earlier also on 30.10.2017, no one had appeared on behalf of the petitioner. Heard the learned counsel for the State. 2. The present writ petition has been filed for issuance of direction upon the respondent authorities to cancel the election of respondent No. 6 as Mukhiya of Silajori Panchayat and further for a direction for holding fresh election or recounting of ballot papers. 3. The factual background of the case as stated in the writ petition is that pursuant to the notification of Gram Panchayat Election of 2015, the petitioner, respondent No. 6 and other candidates filed their nomination papers for the post of "Mukhiya" of Silajori Panchayat situated in the district of Bokaro. Certain representations were filed on 20.11.2015 and 23.11.2015 challenging the candidature of the respondent No. 6 on the ground that at the time of election, the respondent No. 6 was holding the post of "Sahiya" and was getting salary and as such, she was not entitled to contest election for the post of "Mukhiya" in view of instruction issued by the Jharkhand State Election Commission exercising power under Section 66(1) of the Jharkhand Panchayat Raj Act, 2001. It has further been alleged that the election of the said Panchayat has not been done in fair manner, as many bogus votes have been cast in the name of dead persons and also in the name of the persons who were on duty at that point of time. The respondent No. 6 has won by a meager margin i.e., 12 votes and if recounting is done, the petitioner will certainly be declared as winner. However, no action was taken and finally, respondent No. 6 was elected as Mukhiya of Silajori Panchayat. 4. Per contra, the learned counsel for the respondents-State submits that the respondent No. 6 was neither getting salary nor receiving any incentive for the work of "Sahiya" and the said fact is itself evident from letter No. 223 dated 22.4.2016 issued by the In-charge, Medical Officer. 4. Per contra, the learned counsel for the respondents-State submits that the respondent No. 6 was neither getting salary nor receiving any incentive for the work of "Sahiya" and the said fact is itself evident from letter No. 223 dated 22.4.2016 issued by the In-charge, Medical Officer. It is further submitted that on perusal of para 8 of the Instruction issued by the Jharkhand State Election Commission exercising the power under Section 66(1) of the Jharkhand Panchayat Raj Act, 2001, it would be evident that the post of "Sahiya" has not been mentioned in the said paragraph. Moreover, on being elected as Mukhiya, the respondent No. 6 resigned from the said post. It is further submitted that no bogus voting has been done in the election as alleged by the petitioner. 5. Having heard the learned counsel for the State and on going through the materials available on record, it appears that the petitioner has challenged the election of the respondent No. 6 as "Mukhiya" of "Silajori Panchayat" in the District-Bokaro in the Gram Panchayat Election, 2015, mainly on the ground that at the time of election, the respondent No. 6 was holding the post of "Sahiya" and was also getting salary and as such, she was not entitled to be elected as Mukhiya. The petitioner has further alleged bogus voting in the election as well as irregularities in the counting of vote. 6. In the case of "Basanti Devi vs. The State of Jharkhand & Ors." (L.P.A. No. 420 of 2011), the Hon'ble Division Bench of this Court in paragraph Nos. 10, 13, 14, 15, 16 and 17 held as under:-- 10. From the facts referred above, it is clear that the process of election was started under the provisions of Jharkhand Panchayati Raj Act, 2001 and particularly in accordance with the provisions and Rules of 2001 framed under the same Act. Once a certificate is issued in favour of a candidate under Form 22 in accordance with Rule 84 of the Act of 2001, then that declaration is final and can be annulled only by order of Election Tribunal or the Court authorized to entertain election petition. After declaration of result of election by the Returning Officer, he becomes functus officio and the Returning Officer, neither can entertain application for recounting nor can cancel the declaration of result and consequential certificate. 13. After declaration of result of election by the Returning Officer, he becomes functus officio and the Returning Officer, neither can entertain application for recounting nor can cancel the declaration of result and consequential certificate. 13. It is well settled law that, all election disputes should be resolved only by a procedure provided by the Acts and Rules under which elections are conducted. The exclusion of the election disputes is express and clear from the Act of 2001 and the Rules framed thereunder. This is well settled law and which is well settled in the entire country that all election disputes should be raised and resolved through election petitions only when remedy is provided under the Act and Rules which provides for the Election Petition. 14. The Hon'ble Supreme Court in the case of M.V. Elisabeth (supra) held that the High Courts in India are superior Courts of record having original and appellate jurisdiction and they have inherent and plenary power and these powers are restricted when those jurisdiction and powers are expressly and impliedly barred and subject to appellate or discretionary jurisdiction of the Supreme Court, apart from the cases where the jurisdiction of the High Court is expressly barred the High Court has unlimited jurisdiction, in our opinion jurisdiction to limit their own power. We would like to quote paragraph 66 of the said judgment, which is as under: 66. The High Courts in India are superior court of record. They have original and appellate jurisdiction. They have inherent and plenary powers. Unless expressly or impliedly barred and subject to the appellate or discretionary jurisdiction of this Court, the High Courts have unlimited jurisdiction to determine their own powers." (emphasis supplied) 15. Therefore, in view of the said judgment of the Hon'ble Supreme Court, when a power of the High Court has been limited by any statute lawfully then in that situation the High Court is slow in exercising even equitable writ jurisdiction and will not use the power of that authority, in which, such power has been vested by statutory provisions framed under the Constitution of India. 16. Here in this case, as we have already observed, the order passed by the Returning Officer giving certificate in Form-22 under Rule 84 of the Rules of 2001 cannot be said to be wholly without jurisdiction. 16. Here in this case, as we have already observed, the order passed by the Returning Officer giving certificate in Form-22 under Rule 84 of the Rules of 2001 cannot be said to be wholly without jurisdiction. We are of the considered opinion that if the certificate was wrongly issued or illegally issued in favour of the writ petitioner-respondent, then only course open for the appellant to file election petition. Learned counsel for the appellant vehemently submitted that the writ petitioner in his writ petition did not mention that she secured the highest votes and, therefore, for want of pleadings, the certificate given in favour of the respondent-writ petitioner on the face of it is absolutely without jurisdiction. As we have earlier stated, if declaration and certificate have been made issued in favour of any person then it may be illegal but not such declaration is without jurisdiction in above facts. 17. When the Court finds that there is no jurisdictional error and the Court is of the view that alternate remedy is available then the Court should not comment on the merits of the case. In this case, as we have already observed that it is a matter of election and declaration of result under the Act of 2001 and, therefore, the Court having no jurisdiction to enter into the factual aspect of the matter, the court should avoid to look into election record and matter can be left for the election tribunal. The distinction is required to be drawn between the 'ordinary matters' and 'election matters' and in view of the catena of authorities of the Hon'ble Supreme Court restricting the Court in exercising its jurisdiction in the election matter, in a fact situation, where an effective alternate mode has been prescribed by the Act and Rules itself. Therefore, going deep into the facts by proving the record is not permissible and this court cannot decide who secured more votes? 7. On perusal of the aforesaid judgment, it would emerge that once the certificate is issued to the winning candidate in Form 22 under Rule 84 of the Rules, framed under Jharkhand Panchayat Act, 2001, the aggrieved party has option to challenge the same before the Tribunal or Court which is authorized to hear the election petition. 7. On perusal of the aforesaid judgment, it would emerge that once the certificate is issued to the winning candidate in Form 22 under Rule 84 of the Rules, framed under Jharkhand Panchayat Act, 2001, the aggrieved party has option to challenge the same before the Tribunal or Court which is authorized to hear the election petition. The High Court though has plenary power to entertain any application, however, if the statute provides efficacious remedy, the High Court should normally refrain from entertaining and interfering with such matters. The interference of the High Court is limited to exceptional cases. In the case in hand, the petitioner has also challenged the bogus voting in the election which is purely a factual dispute which cannot be entertained or determined in the writ jurisdiction. The other ground raised by the petitioner in the writ petition that the respondent No. 6 has been declared successful by a meager margin and as such, recounting is required, also cannot be determined by the Writ Court at this stage as in the Jharkhand Panchayat Act, 2001 itself, there is a procedure for recounting of vote, however nothing has been brought on record to show that the petitioner has agitated the matter earlier before the respondent authorities before declaration of the result and the same has been refused. Much has been contended in the writ petition that at the relevant point of time, the respondent No. 6 was holding the post of "Sahiya" and getting salary and as such, in view of para 8 of the instruction issued by the Jharkhand State Election Commission exercising power under Section 66(1) of the Jharkhand Panchayat Raj Act, 2001, she was not entitled to contest the election of Mukhiya. So far as the said contention is concerned, on perusal of para 8 of the Instruction issued by the Jharkhand State Election Commission exercising power under Section 66(1) of the Jharkhand Panchayat Raj Act, 2001 it appears that a person holding the post of "Sahiya" has not been excluded from contesting the Panchayat Election. The respondent-State has specifically denied the allegation of the petitioner that the respondent No. 6 was getting salary for holding the post of "Sahiya" and to that effect the respondents-State has brought on record a certificate issued by the Medical Office, Chandankiyari. 8. The respondent-State has specifically denied the allegation of the petitioner that the respondent No. 6 was getting salary for holding the post of "Sahiya" and to that effect the respondents-State has brought on record a certificate issued by the Medical Office, Chandankiyari. 8. In the totality of the facts and circumstances of the case, I see no reason to entertain the present writ petition. The present writ petition being devoid of merit is dismissed.