Allahabad High Court
Smt. Kamla Devi vs State Of U.P. & 3 Others on 4 August, 2014
Bench: Krishna Murari, Vijay Lakshmi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Civil Misc. Writ Petition No. 24151 of 2014 Smt. Kamla Devi ------- Petitioner Versus State of U.P. & Ors. ------- Respondents Hon'ble Krishna Murari, J.
Hon'ble Mrs. Vijay Lakshmi, J.
Petitioner, who is an elected Block Pramukh of Block Kalan, Tehsil Jalalabad, district Shahjahanpur, has approached this Court for a writ of certiorari to quash the result of meeting of Kshettra panchayat held on 24.03.2014 for considering the No Confidence Motion against her. A further relief of mandamus has been claimed to restrain the respondents from interfering with the peaceful functioning of the petitioner as Block Pramukh and not to proceed in any manner to fill up the vancancy of the Block Pramukh.
We have heard Shri Shashi Nandan, learned Senior Counsel assisted by Shri Udayan Nandan for the petitioner, learned Standing Counsel for the State respondents and Shri Keshari Nath Tripathi assisted by Shri Shivam Yadav for respondent no. 4.
Petitioner was elected as Block Pramukh in 2010 and was functioning as such. A No Confidence Motion was moved against her by the members in 2012. As required under the Act, namely, U.P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 (hereinafter referred to as 'Adhiniyam 1961), District Magistrate, Shahjahanpur issued notice to the members convening the meeting on 25.08.2012. The proceedings were challenged by the petitioner by filing Writ Petition No. 41077 of 2012 alleging that 15 days' clear notice, as required under the provisions of the Act, was not given to the members. Vide judgment order dated 14.02.2014, Division Bench of this Court allowed the writ petition. The operative portion of the said judgment reads as under.
"Consequently, we allow the writ petition and set aside all the proceedings of the meeting held on 25.8.2012 including the no confidence motion passed against the petitioner. As a consequence thereof, we also set aside the election of the respondent no. 4 in the resultant vacancy in the office of Block Pramukh, Block-Kalan, Tehsil Jalalabad, District - Shahjahanpur."
A fresh No Confidence Motion dated 26.02.2014 signed by 40 members was again submitted before the District Magistrate. The District Magistrate issued notice dated 04.03.2014 to all the members fixing 24.03.2014 for consideration of the Motion. Sub Divisional Magistrate, Jalalabad, district Shahjahanpur was appointed to preside over the meeting. The notice for meeting of No Confidence was again challenged by the petitioner by filing Writ Petition No. 15938 of 2014, which was dismissed vide order dated 13.03.2014. Meeting, as scheduled, was held on the date fixed and the prescribed authority declared the motion to have been passed.
The first argument advanced by Shri Shashi Nandan, learned Senior Counsel appearing for the petitioner is that 11 elected members of the Kshettra panchayat, since had not subscribed to the oath of office after being elected, hence, they were ineligible to participate in the meeting and to cast their votes. It is further submitted that unless elected members subscribe to the oath of office before the Pramukh or before the Khand Vikas Adhikari in accordance with the provisions prescribed under Uttar Pradesh Kshettra Panchayats and Zila Panchayats (Oath of Office of Adhyaksh or Pramukh etc.) Rules, 1994 in the form set out in the Appendix, they cannot be treated as members and their participation in the meeting of No Confidence dated 24.03.2014 was illegal and their votes are liable to be discarded. It is further contended that, in case, the votes of 11 such members are discarded, the motion of No Confidence automatically fails.
In reply, Shri K.N. Tripathi appearing for contesting respondent no. 4 has submitted that the Adhiniyam 1961 does not contain any specific provision with regard to ineligibility of the member, if he has not taken oath nor there is any prohibition prescribed for such a member to participate in the proceedings or meetings. He further submitted that the Rules of 1994 also only contain the manner in which the oath or affirmation is to be subscribed, and before whom. The said Rules also do not prescribe any ineligibility of the members, who have not subscribed to oath. He further submits that right to vote in the proceedings of the house, once elected as a member, is a fundamental right.
It is undisputed fact that 41 members participated in the meeting of No Confidence, out of which 40 votes were cast in favour and, thus, the Motion was passed by majority.
The core issue, which arises for consideration is as to whether the 11 elected members, who are alleged not to have subscribed to oath as prescribed under the Rules, were entitled to participate in the meeting held for consideration of No Confidence Motion. In this connection, it may be relevant to notice provisions of the Adhiniyam 1961 relating to constitution and composition of a Kshettra Panchayat.
Section 5 of the Adhiniyam 1961 provides for constitution and incorporation of Kshettra panchayat. The said section reads as under.
"5. Constitution and incorporation of Kshettra Panchayat.- (1) There shall be a Kshettra Panchayat for every Khand bearing the name of that Khand and constituted as hereinafter provided.
(2) The Kshettra Panchayat shall be body corporate.
(3) The Kshettra Panchayat shall have its office at such place as may be determined by the State Government and until so determined, at the place at which it was situated immediately before the commencement of the Uttar Pradesh Panchayat Laws (Amendment) Act, 1994.
(4) Any vacancy in any category of members referred to in clauses (a) to (d) of sub-section (1) of Section 6, shall be no bar to the constitution or reconstitution of a Kshettra Panchayat.
(5) The Constitution of a Kshettra Panchayat shall be notified in the Gazette."
The composition of a Kshettra prachayat is prescribed under Section 6 of the Adhiniyam 1961, which is as under.
"6. Composition of Kshettra Panchayat.-(1) A Kshettra Panchayat shall consist of a Pramukh, who shall be its Chairperson and-
(a) all the Pradhans of the Gram Panchayats in the Khand;
(b) elected members, who shall be chosen by direct election from the territorial constituencies in the Panchayat area and for this purpose the Panchayat area shall be divided into territorial constituencies in such manner that, so far as practicable, each territorial constituency shall have a population of two thousand :
Provided that in the hill Districts of Nainital, Almora, Pithoragarh, Tehri, Pauri, Dehradun, Chamoli or Uttarkashi, the State Government may declare an area within a radius of one kilometre (diameter of two kilometres) from the centre of the village specified by it in this behalf, to be a territorial constituency though such area may have a population of less than two thousand :
Provided further that in the territorial constituency of a Kshettra Panchayat, no territorial constituency of a constituent Gram Panchayat shall be included in part;
(c) the members of the House of the people and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly the Khand;
(d) the members of the Council of States and the members of the State Legislative Council who are registered as electors within the Khand.
(2) The members of Kshettra Panchayat mentioned in clauses (a), (c) and (d) of sub-section (1) shall be entitled to take part in the proceedings and vote at the meetings of the Kshettra Panchayat except in matters of election of, and on a motion of no confidence against, the Pramukh or the Up-Pramukh.
(3) Each territorial constituency referred to in clause (b) of sub-section (1) shall be represented by one member.
(4) Every elected member of the Zila Panchayat representing constituency which comprises, wholly or partly, and Kshettra Panchayat, shall be entitled to take part and express his views in the meetings of such Kshettra Panchayat as a special invitee but shall have no right to vote in such meetings."
Section 7 of the Act provides for election of a Pramukh, senior Up-Pramukh and a junior Up-Pramukh. The said section reads as under.
"7. Pramukh and Up-Pramukh.- (1) In every Kshettra Panchayat a Pramukh, a Senior Up-Pramukh and a Junior Up-Pramukh shall be elected by the elected members of the Kshettra 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 Kshettra Panchayat."
The provision relating to calling of the meeting and the procedure for holding of a meeting as also the conduct of the meeting for considering a Motion of No Confidence against Pramukh or Up-Pramukh is contained in Section 15 of the Act, which is as under.
"15. Motion of non-confidence in Pramukh or Up-Pramukh.- (1) A motion expressing want of confidence in the Pramukh or any Up-Pramukh of a Kshettra Panchayat may be made and proceeded with in accordance with the procedure laid down in the following sub-sections.
(2) A written notice of intention to make the motion in such form as may be prescribed, signed by at least half of the total number of elected members of the Kshettra Panchayat for the time being together with a copy of the proposed motion, shall be delivered in person, by any one of the members signing the notice, to the Collector having jurisdiction over the Kshettra Panchayat.
(3) The Collector shall thereupon:-
(i) convene a meeting of the Kshettra Panchayat for the consideration of the motion at the office of the Kshettra Panchayat on a date appointed by him, which shall not be later than thirty days from the date on which the notice under sub-section (2) was delivered to him; and
(ii) give to the elected member of the Kshettra Panchayat notice of not less than fifteen days of such meeting in such manner as may be prescribed.
Explanation.- In computing the period of thirty days specified in this sub-section, the period during which a stay order, if any, issued by a Competent Court on a petition filed against the motion made under this section is in force plus such further time as may be required in the issue of fresh notices of the meeting to the members, shall be excluded.
(4) The sub-divisional officer of the sub-division in which the Kshettra Panchayat exercises jurisdiction shall preside at such meeting :
Provided that if the Kshettra Panchayat exercises jurisdiction in more than one sub-division of the sub-divisional officer cannot for any reason preside, any stipendiary additional or assistant collector named by the Collector shall preside at the meeting.
(4-A) If within an hour from the time appointed for the meeting such officer is not present to preside at the meeting, the meeting shall stand adjourned to the date and time to be appointed by him under sub-section (4-B).
(4-B) If the officer mentioned in sub-section (4) is unable to preside at the meeting, he may, after recording his reasons, adjourn the meeting to such other date and time as he may appoint, but not later than 25 days from the date appointed for the meeting under sub-section (3). He shall without delay inform the Collector in writing of the adjournment of the meeting. The Collector shall give to the members at least ten days' notice of the next meeting in the manner prescribed under sub-section 3.
(5) Save as provided in sub-sections (4-A) and (4-B), a meeting convened for the purpose of considering a motion under this section, shall not be adjourned.
(6) As soon as the meeting convened under this section commences, the Presiding Officer shall read to the Kshettra Panchayat the motion for the consideration of which the meeting has been convened and declare it to be open for debate.
(7) No debate on the motion under this section shall be adjourned.
(8) Such debate shall automatically terminate on the expiration of two hours from the time appointed for the commencement of the meeting, if it is not concluded earlier. On the conclusion of the debate or on the expiration of the said period of two hours, whichever is earlier, the motion shall be put to vote which shall be held in the prescribed manner by secret ballot.
(9) The Presiding Office shall not speak on the merits of the motion and he shall not be entitled to vote thereon.
(10) A copy of the minutes of the meeting, together with a copy of the motion and the result of the voting thereon, shall be forwarded forthwith on the termination of the meeting by the Presiding Officer to the State Government and to the Zila Panchayat having jurisdiction.
(11) If the motion is carried with the support of not less than two thirds of the total number of elected members of the Kshettra Panchayat for the time being-
(a) the Presiding Officer shall cause the fact to be published by affixing a notice thereof on the notice board of the office of the Kshettra Panchayat and also by notifying the same in the Gazette; and
(b) the Pramukh or Up-Pramukh, as the case may be, shall cease to hold office as such and vacate the same on and from the date next following that on which the said notice is fixed on the notice board of the office of the Kshettra Panchayat.
(12) If the motion is not carried as aforesaid or if the meeting could not be held for want of quorum, no notice of any subsequent motion expressing want of confidence in the same Pramukh or Up-Pramukh shall be received until after the expiration of two years from the date of such meeting.
(13) No notice of a motion under this section shall be received within two years of the assumption of office by a Pramukh or Up-Pramukh, as the case may be."
A perusal of the aforesaid provisions go to show that Kshettra panchayat shall consist of a Pramukh, who shall be its Chairperson and the elected members are to be chosen by direct election from the territorial constituencies in the panchayat area. Besides the Pramukh of the Gram Panchayat for the khand, the members of the House of People and members of the Legislative Assembly or State representing constituencies, which comprises wholly or partly the khand of the members of the Council of States and the members of State Legislative Council registered as electors within the khand shall also be member of the Kshettra panchayat, though such members be not entitled to take part in the meeting held for election or to consider Motion of No Confidence against the Pramukh or Up-Pramukh.
The Pramukh or Up-Pramukh of the Kshettra Panchayat are to be elected by elected members of the Kshettra panchayat from amongst themselves. Similarly, for a Motion of No Confidence, a written notice of intention to make the motion in the prescribed form is required to be signed by at least half of the elected members of the Kshettra panchayat and delivered in person by any of such member to the Collector. The notice is to be given and meeting is to be held as per the procedure prescribed under various sub-section of Section 15 of the Act. Under Section 15 (11) of the Act, the Pramukh or the Up-Pramukh, as the case may be, ceases to hold office and shall have to vacate the same, in case, the motion is carried by not less than 2/3rd of the total number of elected members of the Kshettra panchayat.
In accordance with the provisions of Adhiniyam 1961, elected members of Zila Panchayat shall constitute an electoral college to participate and cast their vote in the meeting called to consider the Motion of No Confidence in Pramukh or Up-Pramukh of Kshettra panchayat. There is no dispute between the parties on the fact that all the members, who participated in the meeting of No Confidence were elected members of Zila Panchayat. The only point of issue between them is that 11 members, details of whom, have been set out in paragraph 14 of the writ petition, who had undisputedly not subscribed to the oath or affirmation and participated and voted of the meeting of No Confidence, could have done so and their participation and voting was invalid, on account of their having not subscribed to oath or affirmation.
The provisions of Adhiniyam 1961 do not contain any provision with respect to any oath or affirmation by any of the elected member of Kshettra panchayat. Since no such provision exists in the Adhiniyam, there is also no consequence provided for not subscribing or affirmation to oath. The provisions for subscribing to oath or affirmation by a Pramukh or elected member of Kshettra panchayat was introduced for the first time by the Uttar Pradesh Kshettra Panchayats and Zila Panchayats (Oath of Office of Adhyaksha or Pramukh Etc.) Rules 1994 framed in exercise of powers conferred by Uttar Pradesh (Kshettra Panchayats and Zila Panchayats) Adhiniyam, 1961. The relevant provision of the Rules pertaining to oath or affirmation, in case of elected member of Zila Panchayat is contained in Rule 3 (3), which is as under.
"3- Manner of taking oath or affirmation.
(1) ..........
(2) ............
(3) The members of Zila Panchayat and Kshettra Panchayat before taking their seats for the first time as such members shall make or subscribe oath or affirmation, in the case of member of Zila Panchayat before the Adhyaksha and in his absence before the Mukhya Adhikari and in the case of members of the Kshettra Panchayat before the Pramukh and in his absence before the Khand Vikas Adhikari, in the form set out in the Appendix."
The 1994 Rules does not provide for any consequence of not taking oath or affirmation by a member. The Adhiniyam of 1961 also neither prescribes any provision for any oath to be taken or the affirmation to be made nor it prescribes any consequence fur such an omission.
In the absence of any provision in the Adhiniyam of 1961 or the Rules prescribing any consequence for omission to subscribe to oath or affirmation, it cannot be held that such a member ipso facto looses his membership or in any manner becomes disqualified to either participate or vote in the meeting of No Confidence. His status, despite having failed to subscribe to oath or affirmation, continues to be that of an elected member and he continues to be a member of the electoral college. Participation of such member would neither render the meeting of No Confidence illegal nor vote cast by such member/members is liable to be excluded.
The view taken by me finds support by decision of Calcutta High Court in the case of Bhupindra Nath Basu Vs. Ranjit Singh, AIR 1914 Cal 152. The facts of the said case were as under.
An election was held in 1913 to the Legislative Council of the Governor-General from the constituency consisting of the non-official additional members of the Bengal Legislative Council each having two votes to fill two seats in the Legislative Council of the Governor-General. There were at that time thirty four non-official additional members but two of them had not taken the oath of allegiance at the time of the election as prescribed by the Bengal Council Regulation VII. One of the candidates being unsuccessful filed a suit before the High Court questioning the validity of the election with a prayer to recount the vote after excluding the votes cast by two members, who had not taken the oath of allegiance. Regulation VII of the Bengal Council Regulation provided that every person elected or nominated under the Regulations should before taking his seat at a meeting of the Council make an oath or affirmation of his allegiance to the Crown. Consequences of such an omission are contained in Regulation VIII providing that where such a person fails to make the oath or affirmation prescribed by Regulation VII within such time as the Governor-in-Council may consider reasonable, the Governor, shall by notification in the local official Gazette, declare the election or nomination to be void or his seat to be vacant.
Hon'ble Calcutta High Court finding that such a declaration had not been made on the date of the election, rejected the claim of the plaintiff to exclude the votes of two members, who had not taken oath of allegiance. The High Court held as under.
"Moreover, I am not satisfied that the view of the Government as to the taking of the oath of allegiance is not a correct one. Doubtless the English cases that were referred to, the case of the Mayor of Penryn and King v. Swyer have decided that a person is admitted to a public office, which requires the oath of allegiance, only when the oath of allegiance is taken. That does not get rid of the difficulty that arises from these regulations. These regulations constitute an electoral college of elected members of the Local Council to elect two persons to be members of the Council of His Excellency the Governor-General. I am not satisfied on the regulations that the learned Advocate-General has called my attention to, that when the electors have the right of giving their votes by means of registered letter, for the purpose of being members of electoral college and for that purpose only, that the mere fact of election to the local Council was not sufficient to constitute a person so elected a member of the electoral college. It is only for the purpose of exercising the legislative functions conferred by the regulations and by the Act that the oath of allegiance is required. Moreover, as the Advocate-General has pointed out, the mere fact of omission to take an oath of allegiance does not ipso facto cause a member to vacate his seat; under Regulation VIII of the Bengal Council Regulations, the discretion is given to the Governor as to his declaring a seat to be vacant if the person elected fails to take an oath of allegiance. In my opinion, in this case the rule fails and must be discharged, and discharged with costs."
Provision contained in Rule 3 prescribing for oath by a member/elected member of a Zila Panchayat or Kshettra Panchayat is pari materia with Article 188 of the Constitution of India prescribing for an oath to be taken or affirmation to be made by every member of a Legislative assembly or a Legislative Council. Article 188 reads as under.
"188- Every member of the Legislative Assembly or the Legislative Council of a State shall, before taking his seat, make and subscribe before the Governor, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule."
The issue whether the making of oath or affirmation is a condition precedent for being eligible to act as a proposer or a valid nomination for election to Rajya Sabha came up for consideration before the Hon'ble Apex Court in the case of Pashupati Nath Sukul Vs. Nem Chandra Jain & Ors., (1984) 2 SCC 404.
The Hon'ble Apex Court while approving the ratio laid down in the case of Bhupindra Nath Basu (supra), in paragraph 20 of the said report, held as under.
"We are of the view that an elected member who has not taken oath but whose name appears in the notification published under Section 73 of the Act (Representation of the People Act, 1951) can take part in all non-legislative activities of an elected member. The right of voting at an election to the Rajya Sabha can also be exercised by him. In this case since it is not disputed that the name of the proposer had been included before the date on which he proposed the name of the appellant as a candidate in the notification published under Section 73 of the Act and in the electoral roll maintained under Section 152 of the Act, it should be held that there was no infirmity in the nomination. For the same reason even the electoral roll which contained the names of elected members appearing in the notification issued under Section 73 of the Act cannot be held to be illegal. That is how even respondent 1 appears to have understood the true legal position as he was also proposed as a candidate by an elector who had not yet made the oath or affirmation. The second contention also fails. No other contention was pressed before us. We are, therefore, of the view that the findings recorded by the High Court on the basis of which the election of the appellant to the Rajya Sabha was set aside are erroneous."
In view of above, the first argument advanced on behalf of the petitioner has no legs to stand and, accordingly, fails.
The second contention advanced on behalf of the petitioner is that Meeting of No Confidence was vitiated on account of the fact that at least 8 members were provided the benefit of such helpers, who were neither member of the family of the concerned member nor related to them in any manner, but were outsider, which was in violation of the order dated 30.11.2010 issued by the Election Commission containing stipulation that only the father, mother, son, daughter, brother, sister, husband/wife can be permitted to accompany the member, who by reason of of any infirmity or disability is unable to read the ballot paper and record the vote thereon as a companion.
The issue is one purely based on facts. The allegations in this regard are contained in paragraphs 28 to 39 of the writ petition. For ready reference, the said paragraphs are quoted hereunder.
"28. That, however, the aforesaid order of Prescribed Authority/S.D.M., Jalalabad was totally ignored and 8 persons namely Sarla Devi, Jugendra Singh, Shripal, Itwari, Ram Ladhaite, Urmila, Munisha Devi and Nanhaku were permitted to cast their vote through helpers who were not related to the concerned members nor were they members of their family and consequently the aforesaid 8 votes caste by strangers could not be counted for any propose whatsoever.
29. That it is pertinent to state here that Sarla Devi, Member has been granted benefit of helper by the name of Shri Ram Rathore son of Pohap Ram who is actually resident of Nagar Panchayat Usuwa, district Badaun but his address has been shown as Bhunni Khera, Bhudheli. The aforesaid contention of the petitioner was demonstrated by voter list of Nagar Panchayat usawa, district Badaun of 2012 and the name of Shri Ram has been at serial no. 1482, a copy of voter list of Nagar Panchayat Uwava, distirct Budaun of 2012 is being filed as Annexure 13 to this writ petition.
30. That the Chairman of Nagar Panchayat, Usawa has also issued a certificate to the effect that Shri Ram is a permanent resident of Nagar Panchayat Usawa, district Budaun. A copy of certificate issued by Chairman of Nagar Panchayat, Usawa, district Budaun is being filed as Annexure 14 to this writ petition.
31. That the Pradhan of Gram Panchayat, Bhunni Khera has also issued a certificate stating therein that Shri Ram Rathore son of Pohap Ram is not resident of Gram Panchayat Bhunni Khera and his name is neither recorded in the vote list n or in the family register of the aforesaid village. A copy of certificate issued by Pradhan of Gram Panchayat Bhunni Khera is being filed as Annexure 15 to this writ petition.
32. That similar certificates were also issued on 16.4.2014 by the Block Development Officer, Kalan and Gram Panchayat Adhikari, specifically mentioning therein that the aforesaid person is not resident of the said village. The copy of certificates issued by Block Development Officer, Kalan dated 16.4.2014 and Gram Panchayat Adhikari is being filed as Annexure 16 to this writ petition.
33. That one another member Shri Pal has been granted benefit of helper by the name of Dhanpal Singh son of Shri Ram Prakash and he has been shown to be the resident of village Nausana Madhaiya but in fact he is son of Sri Ram Prakash and he is resident of Village Rafiyabad Kalan and he is placed at serial no. 89 in the voter list of the aforesaid village. A copy of voter list of village Rafiyabad Kalan is being filed as Annexure 17 to this writ petition.
34. That the Pradhan of village Kalan has also issued a certificate to the effect that Dhanpal son of Sri Ram Prakash is the resident of village Refiabad Kalan. The copy of certificate issued by Pradhan of village Kalan is being filed and marked as Annexure 18 to this writ petition.
35. That is clear from the aforesaid facts that Sri Dhanpal is not related with Shripal nor is members of this family.
36. That Pradhan of Village Nausana Madhiya has also issued a certificate dated 21.4.2014 to the effect that Dhanpal son of Sri Ram Prakash is not resident of aforesaid village. Similar certificate has been issued by Gram Vikas Adhikari on 21.4.2014. The copies of certificate dated 21.4.2014 issued by Pradhan of Village Nausana Madhaiya and certificate issued by Gram Vikas Adhikari on 21.4.2014 is being filed as Annexure 19 and Annexure 19 A respectively to this writ petition.
37. That one member Sri Ram Ladhaite has been granted benefit of helper in the name of Pushpendra son of Rajvir Singh, resident of Village Gokul Nagra but he is not the resident of aforesaid village which is amply disclosed by the certificate dated 21.4.2014 issued by Village Development Officer, Gokul Nagra to the effect that Pushpendra son of Rajvir Singh is not the resident of village Gokul Nagra, which clearly indicates that Pushpendra is not the member of family of Ram Ladhaite. The copy of certificate dated 21.4.2014 issued by Village Development Officer, Gokul Nagra and the copy of family register of Ram Ladhaite are being filed and marked as Annexure 20 and Annexure 20 A respectively to this writ petition.
38. That 5 members namely Jugendra Singh, Itwari, Urmila, Munisha Devi and Nanhaku have also granted benefit of helpers who are not members of their family nor they are related to them.
39. That the aforesaid contention is sufficient to establish that total strangers have been permitted to participate in the meeting and cast their vote as helper and Election Commission has issued an order dated 30.11.2010 in which it is clearly mentioned that benefit of grant of helper can granted only to the member of the family of the concerned voter and no outsider can be permitted to function as helper."
The contesting respondents in paragraphs 10 and 11 of the counter affidavit have given details in this regard, which are quoted hereunder.
"10. That with regard to the issuance of the helpers of 8 members of the house are concerned it is categorically stated that none of the family members of the aforesaid 8 members are educated and as they don't have any one in their family as an educated persons therefore the helpers were provided for casting their votes and also providing for casting their votes and also providing them information with regard to the technicalities of the proceedings. The detailed narration with regard to the helpers being provided to the 8 members who participated in the proceedings of the house are as follows:
(I) Sarla Devi aged about 36 years :- In Sarla Devi's house there is only husband Richpal and very small children and both husband and wife are uneducated, there helper was provided his name was Sri Ram Rathor who is the cousin brother of the husband of Sarla Devi (Mausra Bhai).
(II) Sri Pal aged about 52 years :- In Sri Pal's house there is also have small children and wife, who is also uneducated. The helper was rovided his name was Dhanpal who is the cousin brother of Sri Pal (Mausera Bhai).
(III) Ram Ladhaite aged about 40 years :- In Ram Ladhaite's house also have two sons and wife and both the husband and wife are illiterate and the children are of minor age. He was provided the help of one Pushpendra, who is close friend of Ram Ladhaite, although he was not directly or indirectly connected to family of Ram Ladhaite.
(IV) With regard to other 5 members it is also categorically stated that none of the members who have provided with the help of helper were having any family member who are educated and therefore the helpers were provided. So far as Jugendra Singh is concerned his age about 44 years and unmarried and is having no other family members in his house; so far as Itawari is concerned, he is aged about 37 years and only have small children and a wife and all are illiterate; so far as Urmila is concerned, she is aged about 32 years and she has a small children and her husband and both of them are illiterate; so far as Munisha Devi is concerned she is aged about 33 years. She also has small children and husband, who is illiterate; so far as Nanhaku is concerned he is only 28 years old and having wife and small children and both husband and wife are illiterate.
11. That in the light of the above narration it is categorically stated that all the eight members who have been provided helpers were uneducated and there are no other family members available in their house who can act as a helper to help the members of the proceedings in the house and therefore the helpers were provided who belong to other areas and not directly related to the aforesaid 8 members but it is important to mention that all the helpers who have been provided to members are on the request of the members only and are the persons on their own choice. Therefore the Government Orders and guidelines cannot be impleaded so far as these 8 members are concerned who do not have any one in their family who can act and help all of the hem or family with small children and therefore the proceedings of the house and the feelings of the house cannot be turned down on the technicality where the members have lost their confidence in their Pramukh and the rules and regulations have been followed. The aforesaid technicality cannot be put in the line of the feelings of the house."
Reply to the averments made in paragraphs 28 to 39 of the writ petition are contained in paragraphs 30 and 31 of the counter affidavit, which reads as under.
"30. That the contents of paragraphs 28, 29, 30, 31, 32, 33, 34, 35, 36, 37 and 38 of the writ petition are not admitted and are denied. The vote which was caste by the helpers for the 8 members mentioned in the paragraphs under reply were either distant relatives of the aforesaid members or close friends of the members. The narration of the aforesaid has also been made in the preceding paragraphs above and therefore in order to avoid repetition the same is reiterated. It is also categorically stated that in the absence of none of the educated members available to the aforesaid members the facility of the helper was provided by the district administration. There was a discretion by the district administration which was used by them and which was in the interest of justice and that all fairness it has been done.
31. That the contents of paragraph 39 of the writ petition are not admitted and are denied. It is further submitted that since there was no family member available to the aforesaid 8 members that is the reason why the helpers were provided who are distant relative or close friends of the aforesaid members. There is no illegality which has been done by the administration and on this very ground the proceedings of the house cannot be put on a hold."
Order dated 30.11.2010 has been issued by the Election Commission in exercise of power of Superintendence Direction and Control of Conduct of Election conferred by Section 264 B of the Adhiniyam 1961. It provides that, in case, a member is unable to read the ballot paper or to record the vote thereon by reason of illiteracy, blindness or other infirmity, the Returning Officer, on an application made 48 hours before the date of polling, made by the member and after being satisfied with respect to his illiteracy, blindness or other disability, may permit a member to take as far as possible his father, mother, son, daughter, brother, sister, husband/wife as companion of not less than 21 years of age.
Certain other formalities are also required to be completed as declaration etc. but they are not relevant for the purpose of the present case.
Based upon the aforesaid stipulation in the order passed by the Election Commission, it has been urged on behalf of the petitioner that all the helpers/companion provided to the members, were not any of the relations specified and, hence, the proceedings are vitiated.
A perusal of the Election Commission's order dated 30.11.2010 goes to demonstrate that relations specified therein are to be provided as helpers/companion "as far as possible". Thus, there is no complete or absolute bar in providing any person other than those specified in the order as helper/companion. There may be a situation where any member may not be having any of the relations specified in the order, or they may not be available at the relevant time, or may themselves be suffering from such disability as the member himself. In such a situation, if a person of the choice of the member is not permitted as a helper/companion, the entire purpose of providing a helper would stand frustrated.
In view of above, even if some members have been provided persons of their choice as helper and cast their vote through them, will not render the meeting of No Confidence illegal.
Thus, the second argument on behalf of the petitioner also fails.
No other argument or ground was pressed before us.
In the result, the writ petition fails and, accordingly, stands dismissed. However, in the facts and circumstances, there shall be no order as to costs.
August 4th ,2014 VKS