Ram Swaroop Sachan vs State of U.P. and Others

R.A. Sharma, J.—Petitioner along with four other persons were candidates for election to the office of Pradhan of village Girsi, Block Patara, Tahsil Ghatampur, district Kanpur Dehat. Two of the five candidates withdrew their candidature and the nominations of the other two candidates were found to be illegal by the Returning Officer, with the result, the Petitioner was the only candidate left in the field with a valid nomination and was accordingly declared elected Pradhan unopposed on 1.4.1995. A copy of the declaration in prescribed form has been filed as Annexure-1 to the writ petition.

It appears that some complaints were made to the District Magistrate who called a report from the Returning Officer who submitted the report dated 1.5.1995 Informing the District Magistrate that the Petitioner had been duly elected as unopposed Pradhan. in the meantime, the District Magistrate sought the opinion from the Election Commissioner of the State and at his Instance, he cancelled the election of the Petitioner and directed for repoll on 23.4.1995. After the cancellation of his election, the Petitioner filed this writ petition in this Court in which on 21.4.1995 this Court directed the Petitioner to produce the wireless message referred to in the order dated 17.4.1995 whereby repoll has been ordered. The Petitioner has accordingly filed a supplementary affidavit annexing therewith the relevant documents. During the pendency of the writ petition report was held on 23.4.1995 in which the Respondent No. 5 was declared elected. Thereafter, the Respondent No. 5 was added as a party to this writ petition.

The Respondent No. 5 has filed a counter-affidavit. The Petitioner filed a rejoinder-affidavit in reply thereto. But the State has not filed any counter-affidavit inspite of time having been granted to it. Initially, we dismissed the writ petition by an order dictated in the court, but we did not sign that order, because in our opinion, the case required further hearing. Accordingly, the petition was directed to be listed for further hearing. Learned Counsel for the parties were heard again.

In Smt. Ram Kantt v. District Magistrate and Ors. Writ Petition No. 10105 of 1995, decided on May 22, 1995, we have held that he election process comes to an end on the declaration of the result of the candidates who contested the election and thereafter, the Election Commissioner. District Magistrate or any other officer does not have any Jurisdiction over the matter and it is not open to them to cancel the declaration of the result and order for repoll. It was further laid down that after the result of the election has been declared, the only remedy open to a person aggrieved by it is to challenge it by means of election petition under the Act. in the instant case, the District Magistrate has cancelled the election of the Petitioner and ordered for repoll. in view of the law laid down by this Court in Smt. Ram Kanti v. District Magistrate (supra), the impugned order cannot be sustained, because the Petitioner was duly declared elected unopposed as Pradhan of the village in question and it was not open to the Respondents to cancel the declaration of the result and order for repoll.

Learned Counsel for the Respondent has, however, contended that even if the cancellation of the election was wrong, that will not affect the election of Respondent No. 5, because he was duly elected on 23.4.1995 in the re-poll in pursuance of the order of the District Magistrate. This contention is devoid of merit. The repoll, if any, has to fall on the ground automatically after the order cancelling the declaration of the election of the Petitioner is set aside by this Court. in this connection, reference may be made to Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, , wherein it was laid down as under:

Meanwhile, pursuant to the Commission''s direction a re-poll was held. Although the Appellant''s name lingered on the ballot, he did not participate in re-poll and Respondent No. 3 won by an easy plurality although numerically those who voted were less than half of the previous poll. Of course, if the Commission''s Order for repoll fails in law, the second electoral exercise has to be dismissed as a stultifying futility.

For the reasons given above, this petition is allowed. The order cancelling the election of the Petitioner is quashed. The Petitioner is entitled to work as Pradhan of village Girsi, Block Patara. Tahsil Ghatampur, District Kanpur Dehat. The order directing for holding the repoll and the order declaring the Respondent No. 5 as elected Pradhan of the aforesaid village in pursuance thereof are also quashed. It will be open to the person aggrieved to challenge the Petitioner''s election under the provisions of the Panchayat Raj Act. As during pendency of this writ petition, period during which Petitioner''s election could have been challenged by means of election petition has expired, we direct that if the election petition, challenging the election of the Petitioner is filed under the Act, within eight weeks from today, the same shall be decided in accordance with law, but will not be dismissed on the ground of limitation. in view of the facts and circumstances of the case, there will be no order as to costs.