Ganesh vs State of U.P. and Others

The petitioner, who contested the Zila Panchayat Elections from Ward No. 10, Development Block-Barauli Ahir in District Agra, has filed this petition under Article 226 of the Constitution to challenge the order dated 2/3 November 2015 passed by the Returning Officer for recount of the votes. The petitioner has also sought the quashing of the result that was displayed on the website on 7 November 2015 declaring respondent No. 3-Kushal as having been elected. The petitioner has also sought a direction that the District Election Officer should issue a certificate to the petitioner as a returned candidate from Ward No. 10.

The State Election Commission notified the elections for the members of the Kshettra Panchayats and Zila Panchayats in four phases on 21 September 2015. The polling for Ward No. 10 was in the third phase on 18 October 2015. The petitioner submitted the nomination paper on 6 October 2015. It is alleged that the counting of votes was started on 1 November and was completed at 6.00 a.m on 2 November 2015. The petitioner obtained maximum number of votes but in the evening on 2 November 2015, the District Election Officer ordered a recount in regard to ballot boxes of certain polling centres. The petitioner protested and pointed out that a recount was not permissible. It is further alleged that even in the recount, the petitioner again obtained the maximum number of votes but subsequently another recount was ordered in which respondent No. 3-Kushal was declared elected by a margin of two votes.

Sri Manish Goyal, learned counsel appearing for the petitioner submitted:

(i) that the Zila Panchayat elections are governed by the provisions of the U.P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 19611 and the U.P. Kshettra Panchayats and Zila Panchayats (Election of Members) Rules, 19942;

(ii) that Rules 47 to 50 deal with the procedure for counting of votes, Rule 54 deals with declaration of result, while Rule 56 deals with the report of result. In the absence of any provision for recount of votes, it was not permissible for the Returning Officer to order a recount; and

(iii) that the petitioner has, therefore, to be declared elected and, accordingly, entitled to be issued a certificate by the Returning Officer in terms of Rule 56.

Learned Standing Counsel appearing for respondent Nos. 1, 4 and 5 and Ms. Tahira Kazmi, learned counsel appearing for the State Election Commission raised a preliminary objection that the petitioner has a statutory alternative remedy of filing an election petition under Section 27 of the 1961 Act and, therefore, the Court should decline to entertain this petition. Learned Standing Counsel and the learned counsel appearing for the State Election Commission have, however, also submitted:

(i) that the order passed by the Returning Officer for recount of votes does not suffer from any illegality;

(ii) that the recount of votes was done prior to the declaration of the result as contemplated under Rule 54 of the 1994 Rules and also in terms of paragraph 14 of the instructions contained in the booklet supplied by the State Election Commission which deals with recount of votes prior to the declaration of the result;

(iii) that respondent No. 3 had submitted an application dated 2 November 2015 for recount of votes in various polling centres and it is on the basis of the report dated 2 November 2015 submitted by Sri D.K. Singh, Election Officer, Barauli Ahir that the Returning Officer ordered a recount for the polling centres at Ward No. 10; and

(iv) that the recount of the votes was carried out in the presence of the candidates and their agents and ultimately respondent No. 3 was declared elected and a certificate was issued.

The issue, therefore, that arises for consideration is whether a writ petition under Article 226 of the Constitution should be entertained once the election result has been declared and a certificate has also been issued to the returned candidate when there is a statutory alternative remedy available to the petitioner under Section 27 of the 1961 Act to challenge the said election in an election petition.

In this connection, Sri Manish Goyal, learned counsel for the petitioner has placed reliance upon a decision of a Division Bench of this Court in Subhash Vs. State of U.P. and Others, and has submitted that when the rule does not contemplate recount of votes, a petition under Article 226 of the Constitution would be maintainable. Learned counsel for the petitioner has also placed reliance upon the decisions of the Supreme Court in Pundlik Vs. State of Maharashtra and Others, and Election Commission of India Through Secretary Vs. Ashok Kumar and Others, to submit that a writ petition can be entertained even if there is a statutory alternative remedy available.

Learned counsel for the respondents have placed reliance on Article 243-O of the Constitution to contend that no election to any Panchayat should be called in question except by an election petition presented to such authority in such manner as is provided for by or under any law made by the legislature of a State. In support, learned counsel for the respondents have placed reliance upon certain decisions to which we shall advert.

In order to examine the preliminary issue as to whether this petition should be entertained when there is a statutory alternative remedy of preferring an election petition under Section 27 of the 1961 Act and when Article 243-O of the Constitution also postulates that an election should be questioned in an election petition, it would be appropriate to refer to some of the provisions of the 1961 Act and the 1994 Rules.

Section 17 deals with establishment and incorporation of Zila Panchayats. Section 18 deals with composition of Zila Panchayat, while Section 18-B deals with electoral roll for Zila Panchayat. Section 18-C deals with right to vote. Section 27 deals with disputes as to membership or disqualification and is as follows:-

"27 Disputes as to membership or disqualification.

(1) If any dispute 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 to the State Government and the decision of the State Government shall be final and binding.

(2) If 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 purposes of Section 20; or

(c) has become disqualified to be Adhyaksha for the purposes of Section 19,

the dispute shall be referred in the manner prescribed to the Judge whose decision shall be final and binding."

Rule 47 deals with the appointment of time, place and date for the counting, while Rule 50 deals with the procedure at the counting. Rule 54 deals with declaration of result and Rule 56 deals with report of result. Rules 47, 50, 54 and 56 are reproduced below:

"47. Appointment of time, place and date for the counting. - (1) The Nirvachan Adhikari shall appoint a date for the counting of votes which shall be as soon as practicable after the completion of the poll and shall fix the place and time at which the votes shall be counted.

(2) The Nirvachan Adhikari shall give notice of such date, time and place to the contesting candidates or their Nirvachan Abhikartas.

(3) If at the time so appointed for the counting of votes the ballot boxes containing the votes to be counted are not received by the Nirvachan Adhikari or if due to any other unavoidable cause he is unable to proceed with counting, he may postpone the counting to another date and fix the time and place for it and give notice thereof to the contesting candidates or their Nirvachan Abhikartas.

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Procedure at the counting. - On the date and at the time and place appointed under Rule 47 the Nirvachan Adhikari shall proceed as follows:

(a) The Nirvachan Adhikari shall satisfy himself that all the ballot boxes used at the poll and which are to be counted at that place have been received and accounted for.

(b) The Nirvachan Adhikari shall then allow the candidates and their Nirvachal Abhikartas and Ganana Abhikartas present at the counting an opportunity to inspect the balllot boxes and the seals for satisfying themselves that they are in order.

(c) The Nirvachan Adhikari also satisfy himself that none of the boxes has in fact been tampered with. If any ballot box is found by him to have been tampered with or destroyed or lost, the Nirvachan Adhikari shall not proceed with the counting of votes and the provisions of Rule 46 shall apply.

(d) If the Nirvachan Adhikari is satisfied that all such ballot boxes as are to be counted at such place have been received and are in order, he shall take up the counting of the ballot papers contained in the ballot boxes. All the ballot boxes used at polling place shall be opened, and the counting of the ballot papers found in those boxes proceeded with in accordance with the instructions of the State Election Commission, at the same time.

(e) An account of the ballot papers found in the boxes of the polling place shall be recorded in a statement in the form specified by the State Election Commission.

(f) The Nirvachan Adhikari shall allow the candidates, to their Nirvachan Abhikartas and Ganana Abhikartas, who may be present reasonable opportunity to inspect all ballot papers which in the opinion of the Nirvachan Adhikari are liable to be rejected, but shall not allow them to handle these or any other paper. The Nirvachan Adhikari shall on every ballot paper which is rejected endorse rejection in Hindi in Devanagri script. If any candidate or his Nirvachan Abhikartas questions the correctness of the rejection of any ballot paper, the Nirvachan Adhikari shall also record briefly on such ballot paper, the grounds for his rejection.

(g) After the counting of all ballot papers contained in the ballot boxes of the polling place has been completed the Nirvachan Adhikari shall cause all such ballot papers to be kept in a separate packet on which shall be indicated such particulars as will identify the polling place, the name of the Kshettra Panchayat or the Zila Panchayat, as the case may be, and the constituency to which the ballot papers relate.

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Declaration of result. - The Nirvachan Adhikari shall declare candidate securing the highest number of votes in their respective constituency to be duly elected.

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Report of result. - As soon as may be after the result of an election has been declared, the Nirvachan Adhikari shall report the result, to the District Magistrate and shall also inform the Block Development Officer of the Kshettra Panchayat or Chief Executive Officer of Zila Panchayat as the case may be. The District Magistrate shall report the result of the State Election Commission."

Part IX of the Constitution deals with Panchayats. Article 243-K deals with elections of the Panchayats. Article 243-O deals with bar to interference by Courts in electoral matters and is follows:

"243-O. Bar to interference by Courts in electoral matters. - Notwithstanding anything in this Constitution

(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 243K , shall not be called in question in any court;

(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the legislature of a State."

In order to appreciate this preliminary issue, it would also be important to refer to some basic facts. It is not in dispute that the recount was not ordered after the declaration of the result under Rule 54 of the 1994 Rules. It is before the declaration of the result that a complaint dated 2 November 2015 was submitted by a candidate regarding counting of votes. In the first instance, the number of votes of the petitioner decreased by 27 while that of respondent No. 3 increased by 10. It is for this reason that the Election Officer, Barauli Ahir submitted a report dated 2 November 2015 that recount of votes of all the polling centres should be carried out and on the basis of this report, the Returning Officer ordered for recount of votes. It is in the presence of the candidates that a fresh counting was done.

It is not in dispute that the result has been declared under Rule 54 of the 1994 Rules by the Returning Officer and the State Election Commission has been informed. A certificate was also thereafter issued in Form-17. Article 243-O of the Constitution provides that no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the legislature of a State. Section 27 of the 1961 Act provides that if any dispute arises as to whether a person has been lawfully chosen a member of the Zila Panchayat, the dispute shall be referred in the manner prescribed to the Judge whose decision shall be final and binding.

The Uttar Pradesh Zila Panchayats (Settlement of Disputes Relating to Membership) Rules, 1994, which have been framed under Section 237 read with Section 27(2) of the 1961 Act deal with election petition. Rule 4 provides for the manner of raising a dispute under sub-section (2) of Section 27; Rule 5 deals with the form of the petition and Rule 6 deals with the relief that may be claimed. Rule 11 deals with the procedure before the Judge. The said Rules are reproduced below:

"4. Manner of raising disputes under Section 27(2)(a) and (b).--(1) If 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 by any person who could legally be a candidate at such choosing to the Judge within thirty days of the date of choosing.

(2) If a dispute arises as to whether a person has ceased to remain eligible for being chose a member, the matter shall in the manner as provided in sub-rule (1) be raised by any person whose name is registered as an elector in the Electoral roll for the territorial constituency of the concerned Zila Panchayat.

(3) 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 petitioners by any or all of them.

(5). Form, etc. of petition. - (1) A petition presented under Rule 4 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.

(2) A person whose membership is questioned under Rule 4 shall be made a respondent to the petition.

(3) Where a relief under clause (b) of Rule 6 is claimed, every unsuccessful candidates shall be made respondent to the petition.

Relief that may be claimed by the petitioner. - A petitioner 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 concerned 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.

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Procedure before the Judge.--(1) 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:

Provided that--

(a) any two or more petitions to the membership of the same person may be heard together;

(b) the Judge shall not be required to record the evidence in full but shall make a memorandum of the evidence sufficient in his opinion for the purpose of deciding the case;

(c) the Judge may, at any stage of the proceedings; require the petitioner to give further cash security for the payment of the costs incurred or likely to be incurred by any respondent;

(d) for the purpose of deciding any issue, the Judge shall only be found to order production of or to receive only so much evidence; oral or documentary as he considers necessary; and

(e) any person aggrieved from the decision of the Judge may apply for review to the Judge within 15 days from the date of the decision and the Judge may thereupon review the decision.

(2) The provisions of the Indian Evidence Act, 1872 (Act No. 1 of 1872) shall, subject to the provisions of the Act and these rules, be deemed to apply in all respects in the proceedings for the disposal of the petition."

It is, therefore, clear that a detailed procedure is prescribed for raising a dispute regarding an election. Thus, having regard to the provisions of Article 243-O of the Constitution, Section 27 of the 1961 Act as also the provisions of the 1994 Rules and Uttar Pradesh Zila Panchayats (Settlement of Disputes Relating to Membership) Rules, 1994, we are inclined to accept the preliminary objection raised by learned counsel for the respondents that the Court should decline to entertain this petition as the petitioner has a statutory alternative remedy of preferring an election petition under Section 27 of the 1961 Act.

The decision in the case of Subhash, on which reliance has been placed by learned counsel for the petitioner, relates to an order passed by the State Election Commission countermanding an election of a member of a Zila Panchayat. It is while dealing with this issue that the Court examined the provisions of the Rules and found that as there is no provision for countermanding the election, it was not permissible in law to pass such an order. However, at the same time, the Court also observed in paragraph 9 that once the result of the election has been declared it could be challenged only before the Election Tribunal and the observations are as follows:

"9. There can be no dispute to the settled legal proposition that once the result of the election is declared, it can be challenged only before the election Tribunal (vide N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, ; Durga Shankar Mehta Vs. Thakur Raghuraj Singh and Others, ; Brundaban Nayak Vs. Election Commission of India and Another, ; Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, ; Krishna Ballabh Prasad Singh Vs. Sub-divisional Officer Hilsa-cum-returning Officer and Others, ; and Election Commission of India Vs. Shivaji and Others, )"

The other cases, on which reliance has also been placed by learned counsel for the petitioner deal with issues after the commencement of the election process and none of these cases relate to any illegality that may have been pointed out after the declaration of the election result.

In this connection, it would be useful to refer to the decision of the Supreme Court in C. Subrahmanyam Vs. K. Ramanjaneyullu and Others, which deals with the Andhra Pradesh Panchayat Raj Act and of a Division Bench judgment of this Court in Smt. Geeta Singh Vs. State Election Commissioner, Panchayat and Local Bodies, U.P. and others, .

Thus, for all the reasons stated above, the Court declines to entertain this petition. It is, accordingly, dismissed.

1the 1961 Act

2the 1994 Rules