Raja Ram vs State of U.P. and Others

Palok Basu, J.—Raja Ram has filed this writ petition under Article 226 of the Constitution of India praying for a mandamus to reschedule the election process and not proceed with the impending election for the posts of Pramukh of Kshetra Panchayat Shiv Rajpur, District Kanpur Dehat and a further mandamus should issue commanding the Respondents to first hold the election of Member of Kshetra Panchayat from Bagchipur constituency No. 25 in pursuance of the directions given by the Ist Additional District & Sessions Judge, Kanpur Dehat on 11.12.1995.

Shri G. C. Bhattacharya, learned counsel for the Petitioner has been heard in support of this writ petition at substantial length. It is opposed by Shri A. N. Singh assisted by Shri Anil Kumar, Advocate on behalf of the U.P. State Election Commission and Shri S. G. Hasnain on behalf of other official of the State arrayed as opposite party in this writ petition.

In order to appreciate the aforesaid prayer, only two facts may be mentioned. Constituency No. 25 denotes Bagchipur constituency in the district Kanpur Dehat for the purposes of membership of Kshetra Panchayat Shiv Rajpur in the said district. Five persons including the Petitioner Raja Ram and one Shri Akhilesh filed their nominations. In the said election, the said Shri Akhilesh was declared elected. The Petitioner challenged the said election result by Election Petition No. 1/95. The said petition proceeded in the Court of the Ist Additional District and Sessions Judge, Kanpur Dehat where an ex-parte final order has been passed on 11.12.1995, whereby the election for the membership of Bagchipur constituency No. 25 has been set aside and quashed. A further direction has been issued calling upon the District Election Officer to conduct the election for the said membership a new in accordance with law. The second fact is that elections for the posts of Kshetra Panchayat Pramukh (Block Pramukh) are scheduled to take place on 23.1.1996 and nomination papers were accepted till 21.1.1996 and withdrawal was permissible till 22.1.1996.

In view of the aforesaid two facts the aforesaid prayer has been made in the instant writ petition.

Shri G. C. Bhattacharya, learned counsel for the Petitioner vehemently argued that the bar created by Article 243-0 of the Constitution of India will not debar the Petitioner from raising the question of challenging the said election scheduled to be held on 23.1.1996 for the reason that Sub-clause (b) thereof will be attracted to the facts of this case and, therefore, no election petition could be filed under the said Sub-clause (b) and hence, there is no alternative remedy except to approach this Court under Article 226 of the Constitution of India. This argument has been opposed.

On merits, it was vehemently argued by Shri Bhattacharya that in view of the provisions contained in Section 6 of the Uttar Pradesh Kshetra Panchayats and Zila Panchayats Adhiniyam, 1961 read with the provisions contained in Section 7 thereof, it is imperative on the part of the Respondents to first hold the election as directed by the District Judge in the election petition and then only proceed with the election of the Pramukh in accordance with law after filling up the said vacant constituency. This argument is also opposed.

Another argument has been advanced by relying upon the wordings used under Sub-section (1) and the wordings used in Sub-section (2) of Section 7. For ready reference, Section 7 is quoted below:

Section 7. Pramukh and Up-Pramukh.--(1) In every Kshetra Panchayat, a Pramukh, a senior Up-Pramukh and a Junior Up-Pramukh shall be elected by the elected members of the Kshetra Panchayat from amongst themselves.

(2) The election to the office of Pramukh and Up-Pramukh may be held notwithstanding any vacancy in the office of the elected members of Kshetra Panchayat.

The argument proceeds that Just as Sub-section (1) leaves open the office of Pramukh or Up-Pramukh only to the elected members of the Kshetra Panchayat concerned, Sub-section (2) of Section 7 mandates that any vacancy in the office of the elected members of Kshetra Panchayat concerned shall not stop the election for the office of Pramukh or Up-Pramukh. By placing the distinction in the language of the two sub-clauses, it was argued by Sri Bhattacharya that if a vacancy continues within the meaning of Sub-section (1), the election should stop until the said vacancy is fulfilled for, otherwise the Legislature could have made some other provision so as to dispel such an interpretation as is put by him.

It was pointed out, however, by Sri Singh on behalf of the Election Commission that in the aforesaid Sub-section (2), the word ''elected'' is wrongly printed in as "selected" in some books which should be read as "elected" because the original notification uses the word "elected members" and not "selected members" as is wrongly printed in those books. The original notification has been produced by Sri Singh. It is desirable to mention that the correct word is "elected". However, the arguments advanced on behalf of the Petitioner are not acceptable for a variety of reasons as discussed below.

Far-reaching consequence would flow if it is held that if and when a vacancy comes into existence in the elected members of Kshetra Panchayat, the election for the office of Pramukh and Up-Pramukh should be stayed. It may be mentioned that Section 12 has specifically provided that if a vacancy occurs as a result of death or otherwise in the office of an elected member, it shall be filled in the manner provided for in Section 6 for the residue of the term of his predecessor. For ready reference. Section 12 is also quoted below:

Section 12. Filling of casual vacancies.--If a vacancy occurs by reason of death or otherwise in the office of a Pramukh, Up-Pramukh or an elected member of the Kshetra Panchayat, it shall be filled in the manner provided for in Section 6 or 7, as the case may be, for the residue of the term of his predecessor:

Provided that If on the date of occurrence of such vacancy, the residue of the term of the Kshetra Panchayat is less than six months, the vacancy shall not be filled.

It may be mentioned here that Section 6 of the Act makes the provision for constitution of Kshetra Panchayat and Clause (B) of Sub-section (1) thereof provides that elected members, who shall be chosen by direct election from the territorial constituencies under the Panchayat area, with certain qualifications enumerated in the said sub-clause, shall be members of the Kshetra Panchayat.

In view of what the provisions are, the conclusion is inescapable that a vacancy caused by allowing of an election petition has also to be filled in by taking recourse to the provisions of Section 6 of the Act. Under the circumstances, this will also be of a type of casual vacancy which has been taken due note of by the Legislature by providing Section 12, quoted above. It goes without saying that once an election petition has been allowed, the directions contained therein, unless set aside in suitable remedies available under the Act, have to be abided by, for which the normal time provided under the law shall also have to be provided.

In view of what has been stated above, it is apparent that in substance the argument is mis-conceived that because of a casual vacancy, the election for the office of the Pramukh and Up-Pramukh should be stayed. There is no basis for the aforesaid argument and the attempt to use the language of Sub-section (1) and Sub-section (2) of Section 7 to foster the aforesaid interpretation is equally mis-conceived.

The other argument advanced on behalf of the Petitioner was that the Respondents were bound to obey the directions contained in the order of District Judge and since the Petitioner met the District Magistrate on 12-12-1995, met the District Panchayat Adhikari on 6.1.1996 and also met the State Election Commissioner on 12.1.1996, each one of whom had assured the Petitioner that they would follow the mandate of the District Judge''s judgment before the election for the office of the Pramukh takes place, the Respondents cannot be permitted to go ahead with the election for the office of the Pramukh without abiding by their own promise. The Petitioner has his own understanding about what conversation he has had with those authorities but what is important to be mentioned here is that there is no order passed by any of those persons mentioned in the petition postponing the election for the office of the Pramukh concerned. Under the circumstances, the law must take its own course and the Petitioner has absolutely no locus standi at this stage to clamour for the office of Pramukh because first he will have to be elected as a member of the particular constituent unit and then only, if he is getting an opportunity under the law, may fight for the office of Pramukh. Unless this is achievable in accordance with the provisions of law, the Petitioner cannot successfully contend that his right to contest for the office of Pramukh has been thwarted by the aforesaid process adopted by the Respondents.

In view of the aforesaid discussions, there is no merit in this writ petition which is summarily dismissed.