Smt. Ram Kanti vs District Magistrate and Others

R.A. Sharma, J.—In these petitions the following questions are Involved, which are required to be decided by us:

(i) Whether the State Election Commissioner, the District Magistrate or the Election Officer has power to cancel the poll held for electing a Pradhan and direct for fresh poll after a candidate has been declared elected as Pradhan under U.P. Panchayat Raj Act and the Rules framed thereunder

(ii) Whether the State Election Commissioner, the District Magistrate or the Election Officer has power to cancel the declaration, declaring a candidate as duly elected Pradhan and direct for recounting and (iii) Whether the writ petition challenging such cancellations and directions for repoll/recounting is barred by Article 243O of the Constitution of India in Writ Petition No. 10105 of 1995, the Petitioner and nine other women candidates filed nominations for the election to the office of Pradhan of Gram Panchayat, Umaria, District Hamirpur, which was reserved for women belonging to backward class. The nominations of four candidates were rejected while five women candidates withdrew their candidature, with the result that the Petitioner was the only candidate, who remained in the field. She was accordingly declared elected unopposed as Pradhan of the said village by the Assistant Returning Officer. It appears that on the recommendation of the District Election Officer/District Magistrate, Hamirpur, the State Election Commissioner, vide order dated 15.4.1995, cancelled the election of the Petitioner. Being aggrieved by it, the Petitioner has filed this writ petition. The District Panchayat Raj Officer has filed counter-affidavit. On behalf of the State Election Commissioner counter-affidavit has been filed by Sri T.N. Srivastava, Assistant Commissioner, State Election Commission, U.P.

In Writ Petition No. 10105 of 1995, the petitioner and nine other women candidates filed nominations for the election to the office of Pradhan of Gram Panchayat, Umaria, District Hamirpur, which was reserved for women belonging to backward class. The nominations of four candidates were rejected while five women candidates withdrew their candidature, with the result that the petitioner was the only candidate, who remained in the field. She was accordingly declared elected unopposed as Pradhan of the said village by the Assistant Returning Officer. It appears that on the recommendation of the District Election Officer/District Magistrate, Hamirpur, the State Election Commissioner, vide order dated 15.4.1995, cancelled the election of the petitioner. Being aggrieved by it, the petitioner has filed this writ petition. The District Panchayat Raj Officer has filed counter-affidavit. On behalf of the State Election Commissioner counter-affidavit has been filed by Sri T.N. Srivastava, Assistant Commissioner, State Election Commission, U.P.

In Writ Petition No. 11088 of 1995, the Petitioner alongwith some other persons filed nominations for election to the office of Pradhan of Gram Panchayat, Sarwar, Kakarghatti, Ballia, which was reserved for backward class of citizen. Nominations of all the candidates, except the Petitioner, were rejected. The Petitioner was accordingly declared elected unopposed as Pradhan of the said Panchayat vide order dated 30.3.1995. On the basis of the complaint, the Election Officer, vide order dated 6.4.1995, has cancelled the declaration of the result of the election in which Petitioner wais declared as elected. Being aggrieved by the above order, the Petitioner has filed this writ petition. Sri Suresh Dhar had applied for impleadment in this writ petition through Sri B.N. Tiwari, Advocate and he has been Impleaded. He has also filed counter-affidavit. Petitioner has filed rejoinder affidavit in reply thereto. No counter-affidavit has been filed on behalf of the State lnspite of the fact that time was granted for that purpose.

We have heard learned Counsel for the Petitioners and learned standing counsel as well as learned Counsel for the intervener.

Part IX of the Constitution of India, which provides for constitution of the Panchayats and the matter connected therewith, was enacted by 73rd Constitution Amendment Act. Article 243B of the Constitution requires constitution of Panchayats at the village, intermediate and district levels in every State. Article 243D deals with the reservation of seats. Under Article 243K the superintendence, direction and control of the preparation of electoral rolls and conduct of the,election to the Panchayats vests in the State Election Commission, consisting of the State Election Commissioner. After the enactment of Part IX of the Constitution, U. P. Panchayat Raj Act, 1947 (hereinafter referred to as the Act) has been amended so as to bring it in conformity with the constitutional mandate. Accordingly, necessary provisions including the provisions providing for State Election Commissioner, reservation of seats in favour of Scheduled Castes/Scheduled Tribes, women and backward classes have been incorporated in the Act. Government of U.P. has also made Rules known as U.P. Panchayat Raj (Election of Members, Pradhans and Up-Pradhans) Rules, 1994 (hereinafter referred to as the Rules). The Rules have almost adopted the same pattern and the procedure which are contained in the Representation of Peoples Act (hereinafter referred to as the R.P. Act) for holding the election. The Rules contain provisions requiring preparation of calendar for the poll, providing for filing of nomination papers, poll, counting and declaration of the result. There is also provisions in Rule 72 for declaration of the election of a person as Pradhan, if he is the only candidate left in tha field. Article 243O of the Constitution has barred the jurisdiction of the Court in the matter of Election, which can be questioned only by means of an election petition before the prescribed forum. Section 12C of the Act has laid down the forum to question the election by means of election petition.

Chapter 111 of the Rules deals with the election of Pradhans and Up- Pradhans, Rule 72 of which has laid down that if there Is only ofie contesting candidate, he is to be declared forthwith as duly elected. Rule 72 is reproduced hereinbelow:

72 Declaration of results in certain cases. (1) Where on preparing the list under Rule 71 the Nirvachan Adhikari finds that there is only one contesting candidate, he shall forthwith declare him to be duly elected and shall report to the District Magistrate the name of the candidate declared elected.

(2) If all candidates have withdrawn, the Nirvachan Adhikari shall report the fact to the District Magistrate.

Rule 74 empowers the Election Officer to countermand the poll if he is satisfied that the candidate, who has not withdrawn his nomination, has died before the commencement of the poll. In case there are more than one candidates in the election, the Election Officer is required to publish the list of such candidates under Rule 73. Rules thereafter require the poll, counting of votes and declaration of the result. Rule 109, which deals with the declaration of the result is as Under:

Declaration result.- When the counting of votes recorded on the ballot papers contained in the ballot boxes has been completed, the Nirvachan Adhikari shall declare the candidate securing the highest number of votes as elected .

Rule 110 requires that after declaration of the result u/s 109, the Election Officer is to report the result to the District Magistrate and further to inform the Secretary of the Gram Panchayat. The District Magistrate in his turn is to report the result to the State Election Commissioner. Rule 110 is as Under:

Report and notification of election.-As soon as may be after declaration of the result under Rule 109, the Nirvachan Adhikari shall report the result to the District Magistrate and shall also inform the Secretary of the Gram Panchayat. The District Magistrate shall report the result to the State Election Commission.

The R.P. Act also contains the similar provisions. Under Sub-sections(2) and (3) of Section 53 of the R.P. Act, if the number of candidates is equal to or is less than the number of seats to be filled, the Returning Officer has to declare all such candidates as duly elected. However, if the number of contesting candidates is more than the number of the seats to be filled, poll has to be taken. Section 66 of the R.P. Act which provides for declaration of the.result of the poll after contest is as Under:

Declaration of result.-When the counting of the votes has been completed, the Returning Officer shall, in the absence of any direction by the Election Commission to the contrary, forthwith declare the result of the election in the manner provided by this Act or the Rules made there Under.

Section 67 of R.P. Act requires the Returning Officer to report the result of the election to the appropriate authority and the Election Commission. Section 67A specifies the date on which a candidate is declared as elected u/s 53 or 66 as the date of election of that candidate.

Like Article 324. Article 243K of the Constitution, the relevant portion of which reproduced below, vests the superintendence, direction and control of the preparation of the electoral rolls for and the conduct of the election of the Panchayat in the Election Commissioner:

243K. The election of the Panchayats. (1) The superintendence, direction and control of the preparation of the electoral rolls for and the conduct of, all elections of the Panchayats shall be vested in State Election Commission consisting of a State Election Commissioner to be appointed by the Governor.

Section 12BB of the Act, which contains the similar provisions is as Under:

12BB. Superintendence, etc. of the election. The superintendence, direction, and control of the conduct of the election to the office of Pradhan, Up-Pradhan or members of the Gram Panchayat shall be vested In the State Election Commission.

By virtue of Section 12BC of the Act the District Magistrate has to supervise the conduct of all elections of the Pradhan. Up-Pradhan and the members of Gram Panchayat in the district Subject to the supervision and control of the State Election Commission.

From the above provisions, it is thus, apparent that the State Election Commissioner, District Magistrate and the Election Officer are empowered to supervise, control and conduct the election. After the election is over, they lose, all jurisdiction over the matter and it is the Election Tribunal alone, which is competent to deal with the dispute arising out of or in connection with the election. The meaning of the word election and when does the election process comes to an end has been considered by the Supreme Court from time to time while deciding the cases under the R.P. Act, leading case being N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, , wherein the election was given the wide meaning so as to connote the entire process culminating in a candidate being declared elected. It, thus, includes the entire procedure to be gone through to return a candidate to the Legislature. Same rule was reiterated in Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, , wherein it was laid down that the election commences from the initial notification and culminates in the declaration of the return of a candidate. Election process, thus, comes to an end on the final declaration of returned candidates. As the pattern and the procedure for holding the election under the Act and the Rules is similar to that contained in the R.P. Act, the same definition of election has to be applied to the election held under the Act and the Rules. After the election process has come to an end, the State Election Commissioner, District Magistrate and the Election Officer lose all their jurisdiction and the only authority, which can deal with and decide any complaint regarding the election is the Election Tribunal. It follows, therefore, that the State Election Commissioner, District Magistrate and the Election Officer can neither cancel the poll/declaration of the result nor can they direct for fresh poll or recounting after the candidate has been declared elected. But such a declaration has to be in accordance with law. Under the R.P. Act, as per Section 66, after the counting of votes has been completed, the Returning Officer has to forthwith declare the result of the election in the manner provided by this Act or the Rules made there Under. Rule 64 of the Conduct of the Election Rules, 1961 framed under the R.P. Act requires the Returning Officer to declare the candidate as elected in Form 21C or Form 2ID as may be appropriate. Rule 66 further requires the Returning Officer to grant to a candidate so declared elected a certificate of election in Form 22. In Krishna Ballabh Prasad Singh Vs. Sub-divisional Officer Hilsa-cum-returning Officer and Others, , Supreme Court has laid down that in view of the provisions contained in Section 66 of the R.P. Act a candidate can only be declared in the manner provided by the Rules made thereunder and the manner having been provided in Rule 64, a candidate cannot be said to have been duly elected unless the declaration is made in Form 21C. It was further laid down that in the absence of declaration in the said form, even the grant of certificate of election in Form 22 cannot be of any help to a candidate because such a certificate can only be issued after the candidate has been declared elected in the manner prescribed, namely, in Form 21C. It was accordingly held that election process comes to an end only after declaration in Form 21C has been made.

Neither Rule 71 nor Rule 109, which provide for declaration of a candidate as duly elected contain any provision requiring such a declaration in the manner provided by the Act or Rules framed thereunder. In fact neither the Act nor the Rules have laid down any manner nor have they prescribed any form for such a declaraWon. Learned standing counsel has, however, while arguing the case, stated that the State Election Commissioner has prescribed the form for such a declaration, but no such order has been placed before us. It is not necessary for us to go into this matter any further, because it is not disputed that the Petitioners were duly elected as Pradhans by the appropriate authority. In writ petition No. 10105 of 1995 the fact that the Petitioner was declared elected as Pradhan has not been disputed in the counter-aflldavit. The impugned order dated 15.4.1995, passed by the State Election Commissioner cancelling the election of the Petitioner also acknowledges the fact of his declaration as Pradhan. In the other writ petition No. 11088 of 1995, it is not disputed that the Petitioner therein was declared duly elected as Pradhan. In fact Annexure III to this Writ Petition shows that the declaration of the Petitioner is in the appropriate form.

After the Petitioners were declared elected as Pradhans, the election process came to an end, with the result, the State Election Commissioner, the District Magistrate and the Election Officer ceased to have any Jurisdiction over the matter and the impugned orders, passed by them, cannot be sustained.

It is true that Article 243O of the Constitution bars the jurisdiction of the court in the matter of election of Panchayats, but after the election process has come to an end and what is challenged by means of writ petition is not the election but the order of the State Election Commissioner, District Magistrate or the Election Officer, cancelling the poll/declaration of the result and directing for repoll or recounting after a candidate has been duly declared elected, writ petition cannot be barred. In such a case, Article 243O of the Constitution is not attracted. In this connection reference may again be made to the case of Mohlnder Singh Gill v. Chief Election Commissioner (supra), wherein the bar created by Article 329(b) of the Constitution was confined to litigative challenges of electoral steps taken by the Election Commission and its Officer for carrying forward the process of election to Its culmination In the formal declaration of the result. Similarly Article 243O of the Constitution bars the jurisdiction of this Court so far as the election and the steps taken in connection therewith are concerned, but after the election is over, If any Order is passed by the Election Commissioner or any other Officer affecting the election, which has already been completed, writ petition against such an order under Article 226 of the Constitution can be entertained. In such a case no election Is called in question.

For the reasons given above, these writ petitions are allowed with cost. The Impugned orders are quashed. It is open to the person aggrieved to challenge the election of the Petitioners by means of election petition before Election Tribunal u/s 12C of U.P. Panchayat Raj Act.