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2022 DIGILAW 308 (UTT)

Sajid Ali v. State of Uttarakhand

2022-09-19

SANJAYA KUMAR MISHRA

body2022
JUDGMENT : 1. By filing this writ petition, the petitioner has prayed for the following reliefs:- i. Issue a writ of Certiorari to call for the record of the case and quash the order dated 22.02.2022 passed by the respondent no. 1, contained in Annexure 1 to the writ petition. ii. Issue a writ, order or direction in the nature of Mandamus commanding the respondents’ authorities to include the name of the petitioner and other similarly situated persons in the electoral roll of Village Chauli Sahabuddinpur, Tehsil – Bhagwanpur, District – Haridwar so that they may participate and cast their votes in the forthcoming election of Gram Panchayat in District Haridwar. 2. The petitioner’s forefathers were residing in Village Chauli Sahbuddinpur, Tehsil - Bhagwanpur, District – Haridwar. In the year 1960, there was a flash flood in river Sonali, as a result of which, a substantial portion of the land of the said village was washed away. The District Administration in order to re-settle the families, who had lost their houses and homestead, requisitioned 36 Bigha land within the Revenue Village of Mandawar, which is adjoining to the Village Chauli Sahbuddinpur. The petitioner and his ancestors were residing there since then. It is the case of the petitioner that he and his forefathers were casting their vote as members of Village Chauli Sahbuddinpur Gram Sabha and listed as voters in the electoral rolls of the aforesaid Village Chauli Sahbuddinpur Gram Panchayat till 2015. 3. In the last Panchayat election held in the year 2015, the wife of respondent no. 6 contested the election of Gram Pradhan of Gram Sabha, Village Chauli Sahbuddinpur, District - Haridwar. However, she did not succeed in the election. Thereafter, she filed an application before the learned District Magistrate, Haridwar on 08.07.2015 to correct the voter list of Village Chauli Sahbuddinpur and to delete the names of the persons, who are residing in Khasra Nos. 426, 428, 429, 430, 444, 445, 446 and 447 and include their names in the voter list of Village Mandawar. No order was passed by the learned District Magistrate on her application dated 08.07.2015. Thereafter, one Yusuf Ali, who is signatory to the representation dated 08.07.2015, filed a writ petition before this Court bearing WPMS No. 2941 of 2015 for redressal of the aforesaid grievances. No order was passed by the learned District Magistrate on her application dated 08.07.2015. Thereafter, one Yusuf Ali, who is signatory to the representation dated 08.07.2015, filed a writ petition before this Court bearing WPMS No. 2941 of 2015 for redressal of the aforesaid grievances. This Court disposed of the same vide judgment and order dated 26.11.2015 and directed the learned District Magistrate to consider the representation within four weeks from the date of production of certified copy of the order. 4. In compliance of direction of this Court, the learned District Magistrate, Haridwar called a report from the learned Additional District Magistrate, who submitted the same on 19.12.2015 and after considering the report as well as the other facts, the learned Additional District Magistrate rejected the claim of the petitioner in that writ petition on 19.12.2015. The said order was adopted by the learned District Magistrate and on the basis of the report of the learned Additional District Magistrate rejected the claim of the petitioner. Then, Yusuf Ali challenged the order dated 19.12.2015 by filing another writ petition bearing WPMS No. 1139 of 2016 before this Court. 5. At the same time on 22.08.2017, a representation was moved by Irfan and Mehandi Hasan before the Chief Minister for deleting the names of these persons, who are residing in the aforementioned Khasra of Village Mandawar, over which, a letter was written by the Government of Uttarakhand to the Secretary, State Election Commission, Uttarakhand dated 22.09.2017 to take further action in the matter. Upon receipt of the representation, the Secretary of State Election Commission, Uttarakhand was moved for taking appropriate action on the matter on the basis of the aforesaid communication. The State Election Commission vide its order dated 16.12.2017 directed the learned District Magistrate, Haridwar, who happens to be the District Electoral Officer, to delete the names of voters from Serial Nos. 1482 to 3274 from the voter list of Village Chauli Sahbuddinpur and include their names in the voter list of Village Panchayat, Mandawar. In compliance, the learned District Magistrate passed an appropriate order on 03.01.2018. 6. One Wasim terming the order passed by the State Election Commission on 16.12.2017 to be illegal assailed the same by filing a writ petition bearing WPMS No. 539 of 2018 before this Court for quashing the order dated 16.12.2017 and 03.01.2018. In compliance, the learned District Magistrate passed an appropriate order on 03.01.2018. 6. One Wasim terming the order passed by the State Election Commission on 16.12.2017 to be illegal assailed the same by filing a writ petition bearing WPMS No. 539 of 2018 before this Court for quashing the order dated 16.12.2017 and 03.01.2018. This Court, vide, its judgment and order dated 09.03.2018 directed liberty to make necessary correction in accordance with law, after giving opportunity to the petitioner. 7. On 04.08.2018, the learned Additional District Magistrate, Finance and Revenue, Haridwar made an inquiry on the basis of instructions of the State Election Commission dated 02.05.2018 and submitted the inquiry report. In his report, he recommended that the matter is related to the State Government and the State Government is the only appropriate authority and requested the District Magistrate, Haridwar to refer the matter to the State Government. Thereafter, the learned District Magistrate, Haridwar wrote a letter to the Secretary, State Election Commission, Uttarakhand and has opined that the matter may be settled at the time of oncoming election. 8. Thereafter, the petitioner again filed a writ petition bearing WPMS No. 746 of 2019, which was disposed of by this Court on 02.04.2019 directing the respondent to decide the representation of the petitioner dated 04.04.2018 and 05.01.2019 by passing a speaking and reasoned order. 9. Being aggrieved by the order dated 02.04.2019, one Farman filed a Special Appeal bearing No. 785 of 2019 before this Court, which was disposed of on 23.08.2019, wherein the Division Bench of this Court modified the order passed by the learned Single Judge and directed that the authority to give reasonable opportunity of hearing to all the parties concerned. 10. On the basis of the aforesaid direction, the learned District Magistrate, Haridwar vide its order dated 25.09.2019 disposed of the representation with the observations that since in the near future as there is no possibility of election to be held, the same shall be considered at the time of preparation of electoral etc. Thereafter, another writ petition was filed bearing WPMS No. 1139 of 2016, which was disposed of on 12.03.2020 by this Court giving liberty to the petitioner of the present writ petition to make the representation before the Secretary, Panchayati Raj within one month from the date of order. The writ petition was disposed of according to law. Thereafter, another writ petition was filed bearing WPMS No. 1139 of 2016, which was disposed of on 12.03.2020 by this Court giving liberty to the petitioner of the present writ petition to make the representation before the Secretary, Panchayati Raj within one month from the date of order. The writ petition was disposed of according to law. When the learned District Magistrate showed his inability to pass an order on the ground of lack of jurisdiction, the petitioner moved a representation before the Secretary, Revenue on 31.12.2019 for merging the acquired portion into the revenue boundaries of Village Chauli Sahbuddinpur. 11. As allegedly, the Secretary, Revenue did not take up the matter, then petitioner filed a writ petition bearing WPMS No. 473 of 2020, which was disposed of with the direction to the Secretary, Revenue to consider and decide the representation within 10 weeks from the date of production of certified copy of the order. The representation of the petitioner was disposed of by the Secretary, Revenue vide order dated 05.10.2020 and the representation was rejected. 12. Thereafter, Chief Development Officer, Haridwar/Authorized Officer of Panchayat Election, Haridwar passed an order dated 07.10.2020 directed delimitation of Village Panchayat Chauli Sahbuddinpur and Mandawar to correct the electoral rolls for the purpose of Panchayat Election 2021. 13. On 17.10.2020 and 05.10.2020, the orders were challenged by some other petitioners before this Court. One Farman filed a writ petition bearing WPMS No. 2028 of 2020, which was disposed of by this Court vide order dated 29.10.2020 to decide the representation dated 20.10.2020 with further direction to hear all the stake holders specially the person likely to be affected by delimitation, reorganization of Gram Panchayat and electoral roll. The State Government passed an order dated 31.07.2020 for reconstruction and delimitation of the Village Panchayat of District Haridwar. 14. On 28.02.2021 the learned District Magistrate, Haridwar has issued the notification, finalizing the delimitation of Kshetrya Panchayat and Zila Panchayat. 15. On 10.03.2021 the State Election Commission has issued the notification for revision of the electoral roll, however, due to increase in Covid cases, the procedure was postponed and finally, on 23.06.2021, the time schedule has been notified. Thereafter, a voter list 2021 of Village Panchayat Chauli Sahbuddinpur has been prepared and the name of the petitioner and other similarly situated villagers has been removed from the voter list 2021 of Village Panchayat Chauli Sahbuddinpur. Thereafter, a voter list 2021 of Village Panchayat Chauli Sahbuddinpur has been prepared and the name of the petitioner and other similarly situated villagers has been removed from the voter list 2021 of Village Panchayat Chauli Sahbuddinpur. It is, though, not admitted by the learned Senior Counsel for the petitioner that they have been enrolled as voters of Village Mandawar, which is an adjoining of the village. 16. On these facts, the petitioner has prayed for issuance of a writ of Certiorari to call for records of the case and quashing the order dated 22.02.2022 passed by the respondent no. 1 (contained in Annexure No. 1) and to issue a writ in the nature of Mandamus commanding the respondents authorities to include the name of the petitioner and other similarly situated persons in the electoral rolls of Village Chauli Sahbuddinpur Tehsil Bhagwanpur, District – Haridwar, so that, they may exercise the adult suffrage and cast their vote for ensuing election as electorate of Village Panchayat Chauli Sahbuddinpur. 17. Learned Senior Counsel for the petitioner would submit that the order passed by the Authority and also the Appellate Authority invoking Section 4 and Section 9(3) of the Uttarakhand Panchayati Raj Act, 2016 is illegal. As in this case, the Section 3 of the aforesaid Act will be applicable and they are not submitting that there is a distinction between the membership of a Gram Panchayat and a Gram Sabha. 18. For better appreciation, we take into consideration the relevant provisions of Section 3 provides for constitution of Gram Sabha, membership, functions and meetings etc., Section 4 provides for constitution and delimitation of the Gram Panchayat and Section 9 of Uttarakhand Panchayati Raj Act, 2016, which provides for electoral roll for territorial constituency. These provisions are quoted below:- Section 3. Constitution of Gram Sabha, Membership, function and Meetings etc. (A) Gram Sabha- The State Government shall by notification in the official Gazette, establish a Gram Sabha for a village or group of villages by such name as may be specified; Provided that where a Gram Sabha is established for a group of villages, the name of the village having the largest population shall be specified as the name of the Gram Sabha. (B) Membership of Gram Sabha- An adult, who resides and whose name is for the time being included in the electoral roll for a Gram Sabha shall be a member of that Gram Sabha (every person who has completed 18 years of age on first January of the every year shall be entitled to register his name in the electrol roll) (C) Establishment of Gram Sabha and Removal of difficulties arises theirin- If in establishing a Gram Sabha or in the working of a Gram Panchayat, any dispute or difficulty arises regarding the interpretation of any provisions of this Act or any rule made thereunder or any matter arising out of or relating to such interpretation or any matter not provided in this Act, the same shall be referred to the State Government whose decision thereon shall be final and conclusive. (D) Meetings and functions of the Gram Sabha- (1) Every Gram Sabha shall hold four general meetings in each year on the quarterly basis. Which shall be presided over by the Pradhan of the concerned Gram Panchayat: Provided that the Pradhan at any time may, or upon a requisition in writing by the prescribed authority or by not less than one-fifth of the number of the members shall, within thirty days from the receipt of such requisition, can call an extraordinary general meeting: Provided further that where the Pradhan fails to call a meeting as aforesaid the prescribed authority may do so within a period to be prescribed. (2) The meetings of Gram Sabha shall be orginased only in Public/Government buildings or in open place of Gram Panchayat. Explanation- Meeting called at the house of Pradhan/Up-pradhan be considered illegal. (E) Quorum for convened meeting of Gaon Sabha- For the convened meeting of Gram Sabha, 1/5 numbers of total members or attendance of representatives of half families of total families shall be essential. Explanation- Quorum for adjourned meeting, 1/10 number of members of Gram Sabha or attendance of 1/4 of representatives families out of total families is essential. The fixation of number of the families shall be based on the family register. Explanation- Quorum for adjourned meeting, 1/10 number of members of Gram Sabha or attendance of 1/4 of representatives families out of total families is essential. The fixation of number of the families shall be based on the family register. (F) Function and powers of Gram Sabha- (1) The Gram Sabha shall consider the following matters and may make recommendations and suggestions to the Gram Panchayat – (i) the annual statement of accounts of the Gram Panchayat, the report of administration of the preceding financial year and the final audit note and replies, if any, made thereto; (ii) the report of development programmes of the Gram Panchayat relating to the preceding year and the development progrmammes proposed to be undertaken during the current financial year; (iii) the promotion of unity and harmony among all sections of society in the village; (iv) programmes of primary and adult education within the village; (v) such all other public interest matters as may be prescribed. (2) The Gram Panchayat shall give due consideration to the recommendations and suggestions of the Gram Sabha. (G) The Gram Sabha shall perform the following functions; namely:- (a) Mobilising voluntary labour and contributions for the community welfare programmes; (b) Rendering assistance in the implementation of development schemes pertaining to the village; (c) Identification of beneficiaries for the implementation of development schemes pertaining to the village. Section 4. Constitution and de-limitation of Gram Panchayat 1- Gram Panchayat- (1) The State Government may, by notification declare any area comprising a village or group of villages, having so far as practicable a population of 500 in the hill area and a population of one thousand, in plane area to be a Panchayat area for the purposes of this Act by such name as may be specified; Provided that maximum population in the hill area shall be 2000 and 10000 for plane area as for as practicable or not more than this but Gram Panchayat constituted prior to the date of commencement of this Act unless not essential shall be as it is; Provided further that for the purposes of declaration of Panchayat area to the revenue Gram shall not be divided; Provided further also that the Government may by order relax said restrictions in the avoidable or special circumstances. (2) The State Government may, on the request of the Gram Panchayat concerned or otherwise and after previous publication of the proposal, by notification at any time— (a) modify the area of any Panchayat by including therein or excluding therefrom any area of a village or group of villages; (b) alter the name of the Panchayat area; or (c) declare that any area shall cease to be a Panchayat area. (d) The constitution of Gram Panchayat shall be notified, as such manner as may be prescribed and after that the Gram Panchayat shall be deemed constituted as appropriate whether any vacancy is in existence; Provided that constitution of Gram Panchayat shall not be notified until two third of members including Pradhan of Gram Panchayat not elected. (3) The tenure of any member of the Gram Panchayat till the date otherwise shall not be ended under the provisions of the Act, shall be ended with the tenor of the Gram Panchayat. (4) The Pradhan shall be ex-officio Member of Gram Panchayat. (5) The delimitation of the territorial electroll areas in the Gram Panchayat shall be fixed in the manner prescribed. 2- Delimitation of the Area of Panchayat- (1) The delimitation of the Panchayat areas shall be made in such procedure as may be prescribed by the State Government. (2) For the every Panchayat area as such known name of Panchayat area a Gram Panchayat which shall be corporate body, be constituted. (3) A Gram Panchayat shall consist of a Pradhan and in the case of a Panchayat area having a population of– (i) up to 1000- 7 members; (ii) up to 1001 to 2000- 9 members; (iii) up to 2001 to 3000- 11 members; (iv) up to 3001 to 5000- 13 members; (v) more than 5001- 15 members. 3- In the Education Committee and Health and Welfare Committee of the Gram Panchayat, a women member shall be appointed as Chairperson as may be prescribed in the rules. Section 9. Electoral roll for territorial constituency. (1) For each territorial constituency of a Gram Panchayat, an electoral roll shall be prepared, in accordance the rules made thereunder under the superintendence, direction and control of the State Election Commissions. Section 9. Electoral roll for territorial constituency. (1) For each territorial constituency of a Gram Panchayat, an electoral roll shall be prepared, in accordance the rules made thereunder under the superintendence, direction and control of the State Election Commissions. (2) Subject to the superintendence, direction and control of the State Election Commission, the State Election commissioner shall supervise and perform all functions relating to the preparation, revision and correction of the electoral rolls in the State in accordance with this Act and the rules made thereunder; Provided that no such correction, deletion or addition shall be made after the last date for making nominations for an election and before the completion of that election. (3) The electoral roll referred to in sub-section (2) shall be published in the prescribed manner and upon its publication it shall, subject to any alteration, addition or modification made in accordance with this Act and the Rules made thereunder be the electoral roll for that territorial constituency prepared in accordance with the provisions of this Act. 19. Thus, from the scheme of this Act, it is apparent in order to be a member of a Gram Sabha, a person should be a resident of the command area or the jurisdiction of the Gram Panchayat and should have attained the age of 18 years. If the aforesaid two conditions are satisfied by any person then his name shall be included in the electoral rolls. As per sub-section (b) of Section 3, an adult, who resides or whose name is for the time being included in the electoral rolls for the Gram Sabha shall be a member of that Gram Sabha. It appears that Clause (b) there is a grammatical mistake in as much as that there is no electoral rolls of Gram Sabha, electoral rolls is prepared for the Gram Panchayat. 20. Be that as it may, it is very clear from a reading of the aforesaid provisions that a person, who is residing within the jurisdiction of Gram Panchayat and has attained the age of 18 years, shall be included in the electoral rolls of that Gram Panchayat. Every such person, who has attained the age of 18 years and whose name is found in the electoral rolls becomes a member of the Gram Sabha. The Gram Sabha has the function to supervise and recommend. Every such person, who has attained the age of 18 years and whose name is found in the electoral rolls becomes a member of the Gram Sabha. The Gram Sabha has the function to supervise and recommend. Clause (f) Section 3 of the Uttarakhand Panchayati Raj Act provides for the functions and powers of the Gram Sabha. 21. It is also apparent from the records that the Gram Panchayat while executing shall give due consideration to the recommendations and suggestions of the Gram Sabha. Though, Gram Sabha and Gram Panchayat are two distinct body in the sense that Gram Sabha is a general body in which the entire electorate are member and a Gram Panchayat consists of the members, duly elected by the electorate. Gram Panchayat executes the different development work whereas the Gram Sabha acts as a guardian and makes recommendations and suggestions, which are to be considered by the Gram Panchayat. 22. Thus, the essential requisites to be a member of the Gram Sabha or the Gram Panchayat is that person should be 18 years of age and should be resident of that area and his name should have been included in the electoral rolls of the Gram Panchayat. So there is no conflict between the provisions of Section 3, 4 and Section 9 of the Act. A harmonious and conjoint reading of the same reveals that a person can be a member of the Gram Sabha as well as member of the Gram Panchayat but the requisites are that he must be 18 years and residing within the jurisdiction of the Gram Panchayat. 23. In that view of the matter, this Court is of the opinion that once the petitioner and persons who are similarly situated residing within the boundaries of the Revenue Village of Mandawar then in all fitness of things, their names should be included in the electoral rolls of the Gram Panchayat, Mandwar and not of the electoral rolls of Village Chauli Sahbuddinpur, though, they were casting their vote till 2015 as a voter of Village Chauli Sahbuddinpur Gram Panchayat. On different representations the State Government has taken a decision to include their names in the electoral rolls of Mandawar Gram Panchayat and it is in accordance with the provisions of Clause (A) of Section 3 then 2nd proviso to sub-section 1 of Section 4 and also sub-section 3 of Section 9 of the Act. 24. Since, the petitioner is a resident of Revenue Village, Mandawar, the land having not been transferred to the Village Chauli Sahbuddinpur, his best suited to be a voter of Village Mandawar Gram Panchayat. Moreover, this order passed by the Authorities, which is impugned in this case cannot be quashed in a proceeding of Certiorari. 25. It is well settled by Catena of judgment that writ of Certiorari under Article 226 of the Constitution of India is issued for correcting gross errors of jurisdiction i.e. when a Subordinate Authority is found to have acted (i) without jurisdiction – by assuming jurisdiction where there exists none, or (ii) In excess of its jurisdiction – by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice. 26. A writ of Certiorari is not available to correct mere errors of fact or of law, unless the Court is satisfied that the error is manifest and apparent on the fact of the records, such as when it is based on clear and utter disregard to the provisions of law, and a grave injustice or gross injustice has occasioned thereby. A patent error is an error, which is generally considered to be an error which is self-evident. 27. In other words, when an error is perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning, then it shall be treated patent error and should be interfered in a Certiorari jurisdiction. 28. In this case, though, the learned Senior Counsel appearing for the petitioner argued at length, he could not satisfy the Court that a patent error has been committed by the Authorities. More so, this Court is of the opinion that since the petitioner is a resident of Village Mandawar, he is physically residing there. 28. In this case, though, the learned Senior Counsel appearing for the petitioner argued at length, he could not satisfy the Court that a patent error has been committed by the Authorities. More so, this Court is of the opinion that since the petitioner is a resident of Village Mandawar, he is physically residing there. Though, he may be interested that the area should be included area of the Revenue Village of Chauli Sahbuddinpur it cannot be denied that he is physically residing in the Village of Mandawar and he should be included in the electoral rolls of the Village Mandawar Gram Panchayat. 29. With such observations, this Court comes to the conclusion that there is no merit in the writ petition; therefore, the same is dismissed being devoid of merits.