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2021 DIGILAW 210 (ALL)

Vinod Upadhyay v. State of U. P.

2021-02-04

MUNISHWAR NATH BHANDARI, ROHIT RANJAN AGARWAL

body2021
JUDGMENT 1. Heard Sri Shashi Nandan, Senior Advocate assisted by Sri Pankaj Kumar Shukla for the petitioner. Sri Raghvendra Singh, learned Advocate General assisted by Sri Ajit Kumar Singh, Additional Advocate General, Sri Manish Goyal, Additional Advocate General and Sri Sudhanshu Srivastava, Additional Chief Standing Counsel have put in appearance for the State of U.P. Sri Ravi Kant, Senior Advocate assisted by Sri Tarun Agrawal is present for the State Election Commission. 2. This writ petition has been filed for the following prayers-: “(i) issue a writ, order or direction in the nature of mandamus for commanding the respondents to issue notifications for holding the election, indicating therein the entire program of the election positively before expiry of five years of Zila Panchayat i.e. date 13.01.2016 in accordance with theprovisionsofArticle243-E of Constitution of India. (ii) issue a writ, order or direction in the nature of mandamus commanding the respondents subject to the fresh election of Zila Panchayat not to interfere in peace fuly functioning by elected body of Zila Panchayat. (i) issue any other writ, order or direction which this Hon’ble Court deems fit and proper in the circumstances.” 3. Counsel for the petitioner submits that election of Zila Panchayat was to be initiated and completed on or before expiry of the term of the Panchayat. The respondents have failed to undertake the process of election to be completed before the expiry of the term of the Panchayats and thereby administrators have been appointed going against the mandate of the Constitution. A reference of Article 243 (E) of the Constitution of India for it is being quoted herein-: 243E.Duration of Panchayats, etc. The respondents have failed to undertake the process of election to be completed before the expiry of the term of the Panchayats and thereby administrators have been appointed going against the mandate of the Constitution. A reference of Article 243 (E) of the Constitution of India for it is being quoted herein-: 243E.Duration of Panchayats, etc. (1) Every Panchayat, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer; (2) No amendment of any law for the time being in force shall have thee ect of causing dissolution of a Panchayat at any level, which is functioning immediately before such amendment, to the expiration of its duration specified in clause( 1); (3) An election to constitute a Panchayat shall be completed; (a) before the expiry of its duration specified in clause (1); (b)before the expiration of a period of six months from the date of its dissolution: Provided that where the remainder of the period for which the dissolved Panchayat would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Panchayat; (4) A Panchayat constituted upon the dissolution of a Panchayat before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Panchayat would have continued under clause ( 1 ) had it not been so dissolved. 4. As per the mandate of the Constitution, respondents were under obligation to hold the elections within the framework given therein and thereby elections should have been conducted on or before expiry of the term of Panchayats. 5. In view of the aforesaid, we call upon the State Government so as the State Election Commission to find out as to why the elections were not conducted as per the mandate of the Constitution. It is submitted that due to extraordinary situation obtaining in the year 2020 due to COVID19, the process has been delayed. In the process of election, the electoral roll has to be prepared after conducting door to door survey and thereupon constituencies to be finalized on account of delimitation. It is due to urbanization of the areas whereby the constituency of the Panchayat has been reduced. The process of delimitation also took time and thus delay occurred. 6. In the process of election, the electoral roll has to be prepared after conducting door to door survey and thereupon constituencies to be finalized on account of delimitation. It is due to urbanization of the areas whereby the constituency of the Panchayat has been reduced. The process of delimitation also took time and thus delay occurred. 6. Learned Senior Advocate appearing for the Election Commission submits that even after deploying 79,720 Booth Level Officers (B.L.O.), the process to finalize the electoral could be completed by 22nd January, 2021. The survey was conducted for more than one crore families. The process of delimitation and finalization thereupon also took time but it was finalized on 28.01.2021. The election needs at least forty to forty five days. It could not be initiated in absence of exercise by the State Government for reservation of the constituency. The moment reservation of the constituencies is made by the State Government with its notification. The election would immediately be conducted and completed within forty to forty five days. The delay in initiation of work for preparation of electoral was due to pandemic COVID-19. Learned Advocate General appearing with the learned Additional Advocate Generals submits that the process for reservation of the constituencies has to be undertaken in reference to Section 11 (A) of U.P. Panchayat Raj Act, 1947 read with Uttar Pradesh Panchayat Raj (Reservation and Allotment of Seats and Offices) Rules, 1994. The exercise for reservation also requires compliance of U.P. Panchayat (Determination and Publication of Number of Persons Belonging to Backward Classes) Rules, 1994, as amended in the year 2015. The exercise under the Rules of 1994 (as amended) is required due to reduction of number of Panchayats. In the election of 2016, 59074 Gram Pradhans were elected whereas now the number has been reduced to 58194. The number of Gram Pradhans has come down by 880 on account of delimitation and thereby the exercise of reservation of constituencies is going to take time. Door to door survey of backward class has to be made. 7. However, the State Government will make its best effort and on the instructions, it is stated that the process of reservation of the constituencies would be completed by 17th March, 2021 with an information to the State Election Commission. 8. Door to door survey of backward class has to be made. 7. However, the State Government will make its best effort and on the instructions, it is stated that the process of reservation of the constituencies would be completed by 17th March, 2021 with an information to the State Election Commission. 8. Learned Senior Advocate appearing for State Election Commission submits that if the reservation of the constituencies would be completed by 17th March, 2021, the direct election of all the offices would be completed by 30th April, 2021. 9. We find that whatever schedule has been given by the State Government as well as by the State Election Commission is appropriate in the situation obtaining out to COVID-19 Pandemic. In fact, election of Panchayat and Municipalities have been delayed in many States and for that even extension was given by different High Courts and the Apex Court. The reference of it would be for the State of Andhra Pradesh as well as of Rajasthan. 10. Taking aforesaid into consideration, writ petition is disposed of with the direction to the State Government so as the State Election Commission to complete all the required process to hold the direct election of all the Panchayats by 30th April, 2021. Indirect election would be completed thereafter within fifteen days i.e. by 15th May, 2021. The schedule given by the learned Advocate General for the State and the State Election Commission would be complied and thereby reservation of constituencies would be made latest by 17th March, 2021 and thereupon direct election of Panchayats by 30th April, 2021. The indirect elections would be completed by 15th May, 2021. 11. It is made clear that no extension for holding election and any exercise for it would be given because sufficient time has been given not only for the reservation of the constituencies but even holding direct and indirect elections of all the offices of Panchayat. 12. In result of the above, the writ petition is disposed of.