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2017 DIGILAW 670 (ALL)

DEENA NATH v. STATE OF U. P.

2017-03-02

SURYA PRAKASH KESARWANI

body2017
JUDGMENT Hon’ble Surya Prakash Kesarwani, J.—Heard learned counsel for the petitioner and the learned standing counsel for the State-respondents. 2. Briefly stated facts of the present case are that the petitioner contested the election of Village Pradhan of Village Panchayat Hardi Dali, Tehsil Nautanwa, District Maharajganj which was a reserved seat for other backward class. In the said election petition, the respondent No. 4 also contested for Village Pradhan as an OBC candidate and filed an affidavit alongwith caste certificate declaring himself to be an OBC candidate falling under “Kandu” caste. The respondent No. 4 was declared elected as Village Pradhan and the petitioner stood second in the said election held in the month of December, 2015. The petitioner filed an Election Petition No. 06 of 2016 before the prescribed authority (respondent No. 3) under Section 12C (1) of the U.P. Panchayat Raj Act, 1947 (hereinafter referred to as “the Act”), on various grounds including the ground that the respondent No. 4 is not OBC. The caste certificate of respondent No. 4 was also examined by the Scrutiny Committee which found that caste certificate of the respondent No. 4 deserved to be cancelled and accordingly, it made recommendation for cancellation of caste certificate of the respondent No. 4 by minutes of the meeting dated 22.10.2016. Consequently, the caste certificate of the respondent No. 4 was cancelled. 3. The election petition was presented by the petitioner before the respondent No. 3 on 28.1.2016 in which summons were issued fixing the date for 4.2.2016. Since 4.2.2016, sixteen dates were fixed till 21.1.2017 but on fifteen dates, the respondent No. 3 has not taken up the matter and merely gave general dates. 4. Aggrieved with the respondent No. 3 in not proceeding with the election petition and intentionally delaying its disposal so as to help the respondent No. 4 to continue as Village Pradhan despite cancellation of his caste certificate, the petitioner has filed this writ petition. 5. Learned counsel for the petitioner submits that respondent No. 3 was required to decide the election petition within six months but, in collusion with the respondent No. 4, he is delaying the disposal of the election petition and thus facilitating the respondent No. 4 to continue as Village Pradhan despite the effect that his caste certificate has already been cancelled. 6. 6. Learned standing counsel submits that the respondent No. 3 shall decide the election petition within a time bound period. 7. I have carefully considered the submissions of the learned counsels for the parties. 8. It is undisputed that the post of Village Pradhan of Village Panchayat in question was reserved for OBC category. The petitioner as well as the respondent No. 4 both contested in the election held in December, 2015 in which the respondent No. 4 was declared winner. The petitioner has filed the aforesaid election petition challenging the election of respondent No. 4 as Village Pradhan. The caste certificate of the respondent No. 4 has already been cancelled. However, in aforesaid election petition, the respondent No. 3 fixed sixteen dates, out of which on fifteen dates, he merely gave general dates and thus the election petition could not be proceeded. Thus the election petition is pending before the respondent No. 3 from more than one year. 9. Section 12C (1) of the Act provides that the election of a person as Pradhan shall not be called in question except by an application presented to such authority within such time and in such manner as may be prescribed on the grounds that the election has not been a free election by reason that corrupt practice of bribery or undue influence has extensively prevailed at the election or that the result of the election has been materially affected by the improper acceptance or rejection of any nomination or by gross failure to comply with the provisions of this Act or the Rules framed thereunder. Sub section 3 of the Section 12C of the Act provides that the application under sub-section (1) may be presented by any candidate at the election or by any elector and shall contain such particulars as may be prescribed. Sub-section 4 of the 12C of the Act is relevant for the purposes of controversy involved in this writ petition which is reproduced below. Sub-section 4 of the 12C of the Act is relevant for the purposes of controversy involved in this writ petition which is reproduced below. Section 12C (4);— (4) The authority to whom the application under sub-section (1) is made shall in the matter of— (i) hearing of the application and the procedure to be followed at such hearing; (ii) setting aside the election, or declaring the election to be void or declaring the applicant to be duly elected or any other relief that may be granted to the petitioner, have such powers and authority as may be prescribed. 10. Rule 3 of the U.P. Panchayat Raj (Settlement of Election Disputes) Rules, 1994 (hereinafter referred to as “the Rules”) provides that an application under sub-section (1) of Section 12-C of the Act shall be presented, before the Sub Divisional Officer within whose jurisdiction the concerned Gram Panchayat lies; within ninety days after the day on which the result of election in question is announced. Rule 4 of the Rules provides the manner in which the election petition shall be tried by the Sub Divisional Officer. It provides that while deciding election petition, the Sub Divisional Officer shall summarily follow the procedure applicable indicated in the Code of Civil Procedure, 1908 for the trial of suits. Rule 4 further provides that the Sub Divisional Officer may hear the election petitioner or his counsel and if he finds no substance then he may reject it without issue of any notice to the opposite party. Clause (ii) of the proviso Rule 4 (1) of the Rules provides that it shall not be necessary for the Sub Divisional Officer to record the evidence in full and he may maintain only a memorandum of evidence produced by the parties before him. Clause (iv) of the proviso Rule 4 (1) of the Rules provides that the Sub Divisional Officer may allow only such evidence to be produce as he deems relevant for the purpose of deciding the petition. 11. The provisions noticed above clearly indicate a mandate to the prescribed authority (Sub Divisional Officer) for expeditious disposal of election petition. This leads to an irresistible conclusion that uncalled for adjournments in election petition should not be granted. 11. The provisions noticed above clearly indicate a mandate to the prescribed authority (Sub Divisional Officer) for expeditious disposal of election petition. This leads to an irresistible conclusion that uncalled for adjournments in election petition should not be granted. This seems to be necessary on account of the fact that elections are for a fixed term and every attempt must be made to settle the election disputes expeditiously, within a reasonable time, and nobody should be permitted to delay the conclusion of the election petition, otherwise, the very purpose of election may get frustrated and a situation may emerge rendering the remedy of election petition to be illusionary. 12. In the case of Satya Narain v. Dhuja Ram and others, 1994 (4) SCC 247, Hon’ble Supreme Court while considering the provisions of the Representation of the People Act, 1951, has emphasized that for proper functioning of a democracy, the principal object of the Act is to ensure purity of elections and, therefore, when an election of a returned candidate is challenged, trial has to be necessarily expedited. In P. Nalla Thampy Thera v. B. Shanker, 1984 Supp. SCC 631 and in F.A. Sapa v. Singora, 1991 3SCC 375, Hon’ble Supreme Court again expressed similar view. In the case of Mohd. Akbar v. Ashok Sahu and others, JT 2015 (3) SC 311 and Pukhrem Sharatchandra Singh v. Mairembam Prithviraj @ Prithibiraj Singh, JT 2015 (9) SC 113, Hon’ble Supreme Court held that election petitions should be disposed of expeditiously. 13. In the case of Pukhrem Sharatchandra (supra), Hon’ble Supreme Court observed as under; “A voter casts his vote as a responsible citizen to choose the masters for governing the country. That being the trust of the electorate in an elected candidate, when he faces an assail to his election, it should be his sanguine effort to become free from the assail in the election petition and work with attainment and not take shelter seeking adjournments with the elated hope that he can be triumphant in the contest by passage of time. This kind of attitude has to be curbed from all angles because law does not countenance it...................” (Emphasis supplied by me) 14. In the case of Mrs. This kind of attitude has to be curbed from all angles because law does not countenance it...................” (Emphasis supplied by me) 14. In the case of Mrs. Anita Devi v. Prescribed Authority, Panchayat Raj And 11 Others (Writ C No. 14277 of 2016 decided on 31.3.2016), a Division Bench of this Court considered the controversy of delay and disposal of election petition under Section 12C of the Panchayat Raj Act and held as under; “In our opinion a general direction must be issued by the State Government to Sub-Divisional Magistrate to make all attempts to decide the election petition filed under Section 12 C preferably within six months of their institution and only in exceptional cases the time limit fixed be extended and that to for reasons to be recorded. The principle which has been applied by the Supreme Court in dealing with election petitions filed under the Representation of the People Act should also apply to election petitions filed under the provisions of the Panchayat Raj Act. In view of the aforesaid, we dispose of these writ petitions with a direction to the State Government to issue necessary directions to Sub-Divisional Magistrate as indicated above preferably within two weeks from the date a certified copy of this order is filed before the Secretary Panchayati Raj. Such directions are necessary to avoid filing of such election petitions in future before this Court.” (Emphasis supplied by me) 15. The State Government has also issued a circular dated 6.7.2016 directing all the concerned authorities to dispose of election petition within six months. Such directions are necessary to avoid filing of such election petitions in future before this Court.” (Emphasis supplied by me) 15. The State Government has also issued a circular dated 6.7.2016 directing all the concerned authorities to dispose of election petition within six months. The aforesaid circular of the State Government is reproduced below: ^^izs"kd] papy dqekj frokjh] izeq[k lfpo] m0iz0 'kkluA lsok esa] leLr ftykf/kdkjh] m0iz0A iapk;rhjkt y[kuÅ vuqHkkx&3 fnukad % 6 tqykbZ 2016 fo"k;% la;qDr izkUr iapk;rjkt vf/kfu;e] 1947 dh /kkjk 12&x ds vUrxZr iapk;r fuokZpu ds laca/k esa ;ksftr vkifRr;ksa ds le;c) fuLrkj.k gsrq ek0 mPp U;k;ky;] bykgkckn esa ;ksftr fjV ;kfpdk la[;k&22485@2016 Jherh fjUdw nsoh izfr jkT; ljdkj o vU; esa ek0 mPp U;k;ky;] bykgkckn }kjk ikfjr vkns'k fnukad 17-5-2016 ds ifjikyu ds lacaèk esaA egksn;] mi;qZDr fo"k; dh vksj vkidk /;ku vkd`"V djkrs gq, voxr djkuk gS fd la;qDr izkUr iapk;rjkt vf/kfu;e] 1947 dh /kkjk 12&x ds izkfo/kkuksa ds v/khu ;g O;oLFkk gS fd iz/kku ds :i esa vFkok xzke iapk;r ds lnL; ds :i esa fdlh O;fDr ds fuokZpu ds laca/k esa vkifRr djus ds fy, fu/kkZfjr le; vkSj jhfr ls l{ke izkf/kdkjh dks vkosnu i= fn;k tk;sxkA bl /kkjk ds vUrxZr l{ke izkf/kdkjh miftyk eftLVªsV ¼lc fMfotuy eftLVªsV½ fu;r gSA ek0 mPp U;k;ky;] bykgkckn esa ;ksftr fjV ;kfpdk la[;k&22485@2016 Jherh fjUdw nsoh izfr jkT; ljdkj o vU; esa ek0 mPp U;k;ky;] bykgkckn }kjk fnukad 17-5-2016 dks fuxZr vius vkns'k esa fjV ;kfpdk dk fuLrkj.k bl funsZ'k ls fd;k x;k gS fd bl izdj.k esa Hkh fjV ;kfpdk la[;k&14277@2016 Jherh vuhrk nsoh izsLdzkbCm vFkkfjVh iapk;rhjkt esa fnukad 31-3-2016 dks ikfjr fu.kZ; esa ;g dgk x;k gS fd In our opinion a general direction must be issued by the State Government to Sub-Divisional Magistrate to make all attempts to decide the election petition filed under Section 12-C preferably within six months of their institution and only in exceptional cases the time limit fixed be extended and that to for reasons to recorded.” 2- ek0 U;k;ky; ds mDr funsZ'k dks n`f"Vxr j[krs gq, eq>s ;g dgus dk funsZ'k gqvk gS fd la;qDr izkUr iapk;rjkt vf/kfu;e&1947 dh /kkjk 12&x ds vUrxZr xzke iapk;rksa ds fuokZpu ds laca/k esa nkf[ky dh tkus okyh fjV fiVh'kUl dk fuLrkj.k ek0 mPp U;k;ky; }kjk ikfjr funsZ'k esa fu/kkZfjr le;kof/k ds vUrxZr djk;k tkuk lqfuf'pr djsa vkSj vius v/khu dk;Zjr miftyk eftLVªsV ¼lc fMfotuy eftLVªsV½ dks Hkh vius Lrj ls bl laca/k esa Li"V funsZ'k fuxZr djuk lqfuf'pr djsaA Hkonh; g0 viBuh; ¼papy dqekj frokjh½ izeq[k lfpoA^^ 16. In Writ C No. 67587 of 2015 (Munni Lal v. State of U.P. And 5 others) decided on 17.12.2015, another Division Bench of this Court took similar view and directed to decide the election petition within six months. 17. It appears that despite the aforesaid settled position of law, mandamus issue by the Division Benches of this Court and the aforesaid circular of the State Government, the respondent No. 3 has not cared and continued to fix general dates in the election petition in question, for the reasons best known to him. Such an approach of the prescribed authority is arbitrary. 18. In view of the aforesaid, this writ petition is disposed of with a direction to the respondent No. 3 to decide the Election Petition No. 06 of 2016, in accordance with law within six months from the date of presentation of a certified copy of this order, after affording reasonable opportunity of hearing to the parties and without granting any unnecessary adjournment.