Allahabad High Court
Madan Singh vs Madhwa Nand Joshi And Another on 1 March, 2000
Equivalent citations: 2000(2)AWC1639, (2000)2UPLBEC1121
JUDGMENT D.K. Seth, J.
1. The above appeal has been filed under Rule 47 of the U. P. Zila Panchayat (Election of Adhyaksha and Upadhyaksha and Settlement of Election Disputes Rules), 1994 (hereinafter referred to as the 1994 Rules) against the judgment and order dated 27th October. 1999 passed by the learned District Judge, Pithoragarh in Election Petition No. 146 of 1998. Both the plaintiff Madhwanand Joshi and defendant Madan Singh were elected as Members of the Zila Panchayat (hereinafter referred to as Z.P.) of Pithoragarh. During the term of the Z.P., Pithoragarh by a notification dated 28th October, 1997, the State Government created a new district of Champawat carving out a part from the district of Pithoragarh, By reason of the notification dated 18th April, 1995 issued by the State Government, the elected members of the Z.P., Pithoragarh would continue to Members of Z.P., Champawat until a Z.P., Champawat is established in the new district so created and then they will become members of the newly created Z.P., Champawat. On 21st June. 1998, election of Upadhyaksha of the Z.P., Champawat took place, in which one Jeevan Lal Verma elected from a constituency since been included in the newly created Z.P., Champawat was prevented from voting since he was continuing as Upadhyaksha of Z.P., Pithoragarh. Despite being so prevented, he did not challenge the same nor opposed his exclusion from the list of voters for electing Upadhyaksha of Z.P., Champawat. On 13th October, 1998, the State Government issued a notification for initiating election for the post of Adhyaksha. Jeevan Lal Verma, defendant resigned from the post of Upadhyaksha of Z.P., Pithoragarh until 29th October, 1998. Allegedly, Jeevan Lal Verma had submitted his resignation delivered to the Adhyaksha. Pithoragarh Z.P. without delivering the said resignation to the Mukhya Adhikart, Z.P.. Pithoragarh, as was required under the law. On 30th October. 1998, the election of Adhyaksha of Z.P., Champawat took place. The plaintiff Madhwanand Joshi objected to the participation of Jeevan Lal in the election on the ground that he will still be holding the post of Upadhyaksha of Z.P., Pithoragarh. But the Nirvachan Adhikari being the District Magistrate permitted Jeevan Lal to vote after rejecting the objection raised by Madhwanand Joshi. On 9th November, 1998. Madhwanand Joshi filed Election Petition No. 146 of 1998. On 16th November, 1998, a certificate was issued by the Adhyaksha Z.P., Pithoragarh certifying that Jeevan Lal Verma had resigned from the post of Upadhyaksha of that Z.P. On 27th October, 1999, the learned District Judge allowed the Election Petition No. 146 of 1998 setting aside the election of Madan Singh declaring Madhwanand Joshi as duly elected Adhyaksha of Z.P., Champawat, which was due to take effect immediately under Rule 44 of the 1994, Rules. On 28th October, 1999, Madhwanand Joshi took oath of the office of Adhyaksha of Z.P., Champawat and assumed charge of the post.
2. The appeal has been preferred against his order dated 26th October, 1999 passed in Election Petition No. 146 of 1998 by the learned District Judge, Pithoragarh. Mr. M.S. Negi, learned counsel for the appellant has also made an application for interim order restraining Madhwanand from interfering with his working as Adhyaksha of the Z.P., Champawat. Certain orders were passed on the said application and having regard to the urgency of the matter, since notices were issued and the counsel for Madhwanand had appeared, the matter was hotly contested with regard to the interim order. In which claims and counter-claims were made by the respective parties. In order to obviate the situation, by consent of the parties, the matter was fixed for hearing on 22nd February, 2000. Both the learned counsel appearing for the respective parties had made their submissions and concluded the argument on merit of the case, which will be referred to hereafter, and the judgment was reserved.
3. Mr. Negi had contended that on the creation of a new Z.P., each of the members elected from the constituency falling within the Z.P. of Pithoragarh were to continue as members of Z.P., Pithoragarh until the establishment of Z.P., Champawat. According to him, the moment a new district is created, the members elected from the constituency falling within the new district becomes eligible as elected members to be included in the newly created Z.P. Continuation of holding a post of Upadhyaksha in the original Z.P. has no implication with the continuation of the person holding the post as member of the newly created Z.P. He referred to Sections 17, 18, 19, 20 and 21 of the U. P. Kshetra Panchayat and Zila Panchayat Adhiniyam. 1961, in order to substantiate his contention. Therefore, according to him. Jeevan Lal Verma, admittedly, having been elected from a constituency since been assigned to Champawat, was eligible to vote for the election of the Adhyaksha and Upadhyaksha of Champawat. If he has a right and it is wrongly denied and that has not been objected to, still then it does not mean that Jeevan Lal had lost his "membership to the Z.P., Champawat. He remains a member of the Panchayat by fiction of law. There cannot be any estoppel in respect of legal proposition and situation. He then contends that even if it is assumed that his continuation as Upadhyaksha of Pithoragarh Z.P. would debar him from participating in the election, then also Jeevan Lal having submitted his resignation on 29th October, 1998 he was free to participate in the election. He further contends that even if it is held that Jeevan Lal was not entitled to participate in the election, still then there cannot be any declaration of Madhwanand as duly elected Upadyaksha since the vote was by secret ballot. In law there cannot be any question of presumption or proof of a fact as to in whose favour, Jeevan Lal had cast his vote. Therefore, at the best the Court ought to have, assuming but not admitting, after setting aside the election, direct fresh election to be held. According to him the election being by secret ballot, the same cannot be made open or public even by judicial pronouncement. He then contends that there cannot be any basis of any legal presumption that Jeevan Lal had voted for the appellant Madan Singh. He then contends that in view of the provisions of U. P. Zila Panchayat (Settlement of Disputes Relating to Membership). Rules, 1994, the question as to whether Jeevan Lal is a member of Z.P., Champawat can be determined only in a dispute relating to membership Rules. The said question cannot be gone into within the scope and ambit of Election Disputes Rules. Therefore, according to him the decision is wholly without jurisdiction. In support of his contention, he had relied on two decisions, namely, in the case of Shri Shreewant Kumar Choudhary v. Shri Baidyanath Panjiar, AIR 1973 SC 717, and in the case of R. Chandran v. M.V. Marappan, AIR 1973 SC 2362. On these grounds the appellant wants that the judgment appealed against be set aside.
4. Mr. V.K.S. Chaudhary on the other hand assisted by Mr. R.K. Ojha contended that so Jeevan Lal holds the post of Upadhyaksha of Z.P., Champawat, he continues to be a member of Pithoragarh Z.P. and he cannot retain dual membership in respect of Champawat Z.P. As such, he is not eligible to participate in the election of Adhyaksha of Champawat Z.P. He then contends that on an earlier election when the Upadhyaksha was elected, the said Jeevan Lal having not objected to his exclusion from the electoral college, he had waived his right or in other words had accepted this position that he is not entitled to vote so long he holds the post of Upadhyaksha of Pithoragarh Z.P. He then contends that the alleged resignation submitted by Jeevan Lal cannot be held to be a resignation since the resignation is to be delivered to the Mukhya Adhikari. Submission of the alleged resignation to Adhyaksha of Pithoragarh Z.P. cannot be treated to be a resignation within the meaning of the provisions contained in 1961 Act. Therefore, on 30th October, 1998, he cannot be treated to be a member eligible to vote in the election of Upadhyaksha of Champawat. According to him, the genuineness of the alleged resignation is also not free from doubt. Inasmuch as the certificate that he had resigned from the post of Upadhyaksha of Pithoragarh Z.P. was obtained on 16th November, 1998 after Madhwanand had filed the election petition on 9th November, 1998. Therefore, in such circumstances by no stretch of imagination, the said Jeevan Lal could be a member eligible to participate in the election of Upadhyaksha of Champawat Z.P. He next contends that even on 21st June, 1998 on the objection of Madhwanand, the said Jeevan Lal was excluded from the electoral college for election of Upadyaksha of Champawat Z.P. Madhwanand had also raised objection to the inclusion of the Jeevan Lal in the electoral college for the election of Upadhyaksha of Champawat Z.P. Therefore, it can safely be said to have been proved on these admitted facts that Jeevan Lal had cast his vote in favour of Madan Singh who had obtained a certificate from the Adhyaksha Pithoragarh Z.P. He further contends that Jeevan Lal and Madan Singh belonged to the same political party as has been found by the learned District Judge and that according to normal human conduct Jeevan Lal is not supposed to vote for Madhwanand who had raised objection to his participation on 21st June, 1998 and on 30th October, 1998. Therefore, according to him. the learned District Judge was right in holding that Jeevan Lal had cast his vote in favour of Madan Singh. His further contention was that though the election was by secret ballot but when it comes to Court, it is open to the Court to take a view since it is a privilege of the Court where the secrecy is not required to be maintained. He had relied on various Sections of the 1961 Act and various Rules of the Election Disputes Rules as well as the definition of 'proof' and 'presumption' as well as Section 114 of the Evidence Act. After having addressed the Court on merit, Mr. Chaudhary had also taken a point on the question of maintain ability of the appeal to the extent that the appeal preferred does not conform to Chapter XIV-A of the Allahabad High Court Rules, which governs the procedure for an appeal preferred under Rule 47 of the Election Disputes Rules, 1994. He had also relied on Rule 16, Chapter XIV-A, wherein the Rule has been referred to as Section 49 of the 1963 Rules, which is part materia identical with Rule 47 of the 1994 Rules and contended that by reason of Section 8 of the General Clauses Act having regard to the ratio laid down in the case of National Sewing Thread Co. Ltd. v. James Chadwick and Brothers, AIR 1953 SC 357 (para 9) ; Union of India and others v. Yaqub Ali Khan, AIR 1963 All205 (para 8) and in the case of Om Prakash v. State of Uttar Pradesh, 1972 AWR 428 (para 6), reference to Section 49 in Rule 16 would mean Rule 47, after the 1963. Rule was repealed re-enacting Rule 49 of 1963, Rules as Rule 47 of 1994, Rules and as such the appeal has to conform with the procedure prescribed in Chapter XIV-A of the Allahabad High Court Rules. Unless it conforms to the said procedure, the appeal is not maintainable and is liable to be dismissed. According to him, there was no service and that no paper book has since been prepared and that the relevant papers which ought to be included in the memo of appeal having not since been included, by reason of infraction of the provisions contained in Chapter X1V-A, the appeal is liable to be dismissed.
5. I have heard both the learned counsel at length.
6. The more erudite the counsel are, more the confusion created. I must record my appreciation in the manner in which Mr. Chaudhary, senior counsel, had raised the level of his submission. In order to appreciate the respective contentions of the learned counsel, it would be necessary to refer to respective provisions of the Act and the Rules as was referred to by the respective counsel for our purposes and the provisions of the Evidence Act at appropriate stages.
7. There has been certain amendment in the Act and the Rules which have since been incorporated and are not disputed by either of the parties who relied on the same.
8. Before I proceed to deal with the respective submissions. I would like to examine the objection as to the maintainability of the appeal pleaded by Mr. Chaudhary though raised at the end of his argument. Had it been taken as a preliminary objection before Mr. Negi had concluded his argument and Mr. Chaudhary had addressed the Court on merit. In reply, the question would have been different. Inasmuch as in that event Mr. Negi could have been called upon to meet the point before entering into the question on merit. Thus, no opportunity having been given to Mr. Negi with regard to the technical objection raised at the end of the submission of Mr. Chaudhary, in my view the said objection should have been ignored.
9. But then the question may also be examined with regard to the merit of the objection. Allahabad High Court Rules in Chapter XIV-A prescribes special provisions relating to proceedings in appeals from orders of Election Tribunals. Rule 1 refers to appeals under Section 116A of the Representation of the Peoples' Act, 1951. But by reason of Rule 16, an appeal under Rule 49 of the U. P. Zila Panchayats (Election of Adhyaksha and Upadhyaksha and Settlement of Election Disputes) Rules, 1963 is also governed by Chapter XIV-A of the High Court Rules. The Election Dispute Rules, 1963 has since been repealed and U. P. Zila Panchayats (Election of Adhyaksha and Upadhyaksha and Settlement of Election Disputes) Rules, 1994 was enacted. In the re-enacted 1994 Rules, Rule 49 of 1963 Election Disputes Rules was incorporated and re-enacted part materia identically as Rule 47. By reason of Section 8 of the General Clauses Act, reference to Rule 49 of 1963 Rules in Rule 16 of Chapter XIV-A of the Allahabad High Court Rules, by fiction of law would mean to refer to Rule 47 of the 1994 Election Disputes Rules. Contention of Mr. Negi that since Rule 16, Chapter XIV-A has not been amended to incorporate Rule 47 of the 1994 Rules, Rule 16 with reference to Rule 49 of 1963 Rules cannot have even its application to appeals under Rule 47 of 1994 Rules, does not seem to be well conceived. On the face of it, the submission does not seem to be sound. There is no doubt that Rule 16 includes appeals under Rule 49 of the 1963 Rules re-enacted as Rule 47 of the 1994 Rules. As such appeals from an order of the Election Tribunal referred to in Rule 47 of the 1994 Rules are surely to be governed by the special provisions incorporated in Chapter XIV-A.
10. Chapter XIV-A of Allahabad High Court Rules in Rule 2 prescribes the documents to accompany the memo of appeal. Under Rule 3, it prescribes the process for service by post. In Rule 4 publication of notice in newspapers in addition to postal service and in Rule 6, supply of paper-book by appellant, and contents of paper-book in Rule 7, as well as certification of correctness of paper book in terms of Rule 9, are prescribed. Rule 14 makes some provision relating to First Appeal as contained in the Allahabad High Court Rules particularly in Chapters IX, X, XI, XII and XIII applicable to appeals under Chapter XIV-A.
11. Admittedly, the memo of appeal is not accompanied with some of the documents. It is lacking lists setting out the documents by which the appellant relies on in addition to setting out the present address and postal envelopes etc. Rule 47 of Election Disputes Rules does not prescribe deposit of treasury receipt as contained in clause (g) of Rule 2 of the Allahabad High Court Rules. But then the question has to be looked into in the present facts and circumstances of the case where the respondents have appeared and are represented. Therefore, an affidavit relating to present address of the respondents or the deposit of receipt towards cost of publication of notice and postal envelope may not be necessary. Since the memo of appeal has been served on the respondents, clause (e) also becomes irrelevant. In the present case, there being no dispute with regard to facts or the documents, non-inclusion of the list of the documents will not prejudice the parties. Since the respondents have appeared the question of service by post and notice in newspapers in addition to postal service may not be of any importance. The publication of notice under Rule 4 would have any relevance, if it was a dispute in respect of election as a member of the Z.P. from a particular constituency where the people elect their representative. But when it is not a dispute with regard to the election of members from a constituency and it relates to the election of the Adhyaksha by the members elected, the submission of Mr. Chaudhary that the electorate is also to be informed, does not seem to have any relevance, since in such an election, the electorate would always be represented by the elected member who has since been elected by the electorate and with regard to which election, there is no dispute. Therefore, the lack of compliance of publication in the facts and circumstances of the case would not be fatal to the question and as such deposit of Rs. 25 towards the cost of publication nevertheless would not be at all fatal. Admittedly, the memo of appeal has been supplied along with copy of the judgment and order appealed against. Then again until the arguments on merit was over, this point was not taken by Mr. Chaudhary. He had never complained that he is short of any documents or that he was handicapped by reason of absence of paper-book or any of the documents which are required to be included in the paper-book.
12. The facts having been admitted and not being disputed and the question having been related only to the question of law, this lack of compliance of technicalities cannot be said to be fatal. The procedures are handmaids of justice. The technicality cannot over-ride or prevent justice being done particularly when such objection was not taken as a preliminary objection at the initial stage. The objection with regard to non-compliance of the provisions of Chapter XIV-A is not related either to jurisdiction or incompetence or to such other objection which will otherwise render the judgment of this Court a nullity or non-est or without jurisdiction. The objection cannot be given so much of weight as to non-suit the appellant after the argument on merit is over without raising any objection with regard to the technicalities. It is not a case that by reason of non-observance of any of the technicalities prescribed in Chapter XIV-A any of the parties has suffered any prejudice in any manner whatsoever. Mr. Chaudhary had never complained that on account of non-compliance, he had any difficulty in conducting the case or arguing the same.
13. Therefore, in the peculiar facts and circumstances of the present case and for the reasons as discussed above, the objection as to the maintainability raised by Mr. Chaudhary cannot be acceded to and is, hereby, overruled.
14. Now let us examine the question as to whether Jeevan Lal had submitted his resignation or in other words, the alleged resignation submitted by Jeevan Lal could be treated to be resignation in terms of Section 24(1) of the 1961 Act, that provides :
"Adhyaksha or Upadhyaksha or any elected member of the Zila Panchayat may resign his office by writing under his hand addressed, in case of Adhyaksha to the State Government and in other cases, Adhyaksha and delivered to the Mukhya Adhikari of the Zila Panchayat."
15. In the present case, admittedly, the resignation was addressed and was delivered to the Adhyaksha. Admittedly, it was not delivered to Mukhya Adhikari of the Z.P. Since Section 24, sub-section (1) prescribes a particular manner in which a resignation has to be submitted, resignation cannot be submitted save in the manner prescribed in Section 24 (1). The resignation was admittedly in writing and was also addressed to the Adhyaksha. An Upadhyaksha is required to address his resignation to the Adhyaksha. But the same has to be delivered to the Mukhya Adhikari of the Z.P. in the present case, admittedly, the resignation having not been delivered to the Mukhya Adhikari of the Z.P., in the eye of law the resignation cannot be treated to be a resignation within the meaning of Section 24 (1) of the 1961 Act. Thus, the certificate issued by the Adhyaksha certifying the resignation of Jeevan Lal is of no consequence, until it is shown that it was delivered to Mukhya Adhikari and thereafter the Adhyaksha had accepted the same. Thus, alleged resignation of Jeevan Lal whether it was submitted on 29th October. 1998 or not or was obtained after the filing of the election petition becomes immaterial and irrelevant,
16. Now let us examine the effect and impact of creation of a new district and establishment of a new Z.P. in relation to the question of membership and election of Adhyaksha and Upadhyaksha.
17. Section 17 of the 1961 Act prescribes that the State Government by notification in the Gazette shall establish for each district a Z.P. bearing the name of the district. Thus, whenever a new district is created by reason of sub-section (1) of Section 17, Z.P. bearing the name of the new district is to be established. By reason of sub-section (2) of Section 17. Z.P., so established under sub-section (1) shall be a body corporate. Sub-section (3) deals with the situation where a new district is created. In terms thereof, so long a new Z.P. is not established in the newly created district, the Z.P. having jurisdiction in the area immediately before the creation of the new district shall continue to exercise such jurisdiction over such area included in the new district in respect of the matters contained in clauses (i) and (ii) of sub-section (3). On the establishment of a new Z.P. the action taken by the Z.P. immediately before the creation or establishment of the Z.P. as contained in clauses (i) and (ii) shall be deemed to have been taken by the newly created Z.P. until modified, changed or superseded, as the case may be.
18. This provision clearly indicates that after the creation of a new district so long a new Z.P. is not established, the erstwhile Z.P. would continue to function in respect of the matters covered in clauses (i) and (ii). Since sub-section (3) specifies the area in respect whereof jurisdiction is conferred by fiction, the same has nothing to do with matters not covered within clauses (i) and (ii). When a situation is created to save transitory position through fiction of law, the same has to confine to the fiction created by law. When it expressly provides for without leaving any scope or doubt or ambiguity, it has to confine it within the scope and ambit so provided expressly. When the Legislature used an expressed provision, it is not permissible to travel beyond such express provision and interpret something or read something in between the lines, so as to add, alter or enhance the scope through interpretation by Court. Any such attempt by the Court even on the garb of interpretation would amount to legislation, a domain outside the jurisdiction of Courts amounting to an encroachment on the domain of the Legislature.
19. Therefore, the contention of Mr. Chaudhary that despite creation of the new district and establishment of new Panchayat the said Jeevan Lal would continue to be a member of district Pithoragarh cannot be sustained. Inasmuch as Section 18 prescribes composition of Z.P., Clause (b) thereof prescribes that a Z.P. shall consist of elected members chose by direct election from the electoral constituency in the Panchayat area. When Z.P., Pithoragarh was constituted, the constituency from which Jeevan Lal was elected was a constituency within the electorate of Pithoragarh Z.P. Admittedly, on the creation of the new district, the electoral constituency wherefrom Jeevan Lal was elected was assigned to Champawat. It was not a case that a part of the constituency was retained in Pithoragarh. The position is absolute and clear and is not in dispute to the extent that the whole of the electoral constituency wherefrom Jeevan Lal was elected, was included in the district of Champawat. As such in order to be member of Z.P., one has to be an elected member from the electoral constituency in that Panchayat area. Thus, as soon as a new Panchayat is established, Jeevan Lal could not continue as a member of Pithoragarh Z.P. By operation of law and by fiction, he ceased to be a member of Pithoragarh Z.P. and on the establishment of Champawat, he becomes a member of Z.P., Champawat. There is a distinction between a member and office-bearer. Jeevan Lal might be an office-member holding the post of Upadhyaksha in Pithoragarh. Z.P. but he remains a member of Z.P., Champawat. He cannot be deemed to be the member of Z.P. Pithoragarh. Continuation on the post of Upadhyaksha by Jeevan Lal after Champawat, Z.P. was established, cannot be supported by law. Wrongful continuation therein might have legal repercussion with regard to the functioning of the Z.P. of Pithoragarh. But it can never take away the right of Jeevan Lal in law as a member of the Z.P., Champawat. Even if he continues to be an Upadhyaksha of Pithoragarh Z.P., still then he cannot be treated to be a member of Pithoragarh Z.P. since he is ceased to be a member elected from an electoral constituency of Z.P., Pithoragarh. Thus, the fact of creation of a new district and on the establishment of Z.P., the members elected from the electoral constituency fully included in the new district, shall cease to be members of the erstwhile district from which a new district is created. By reason of Section 18, there is no scope for Jeevan Lal to be included in the composition of Z.P., Pithoragarh as soon the electoral constituency from which he was elected was ceded from Z.P., Pithoragarh and included in Z.P., Champawat on the establishment of the new Z.P., Champawat.
20. Section 27B was inserted by U. P. Panchayat Laws (Amendment) Act, 1995, which came into force from April 2, 1994. This newly inserted section prohibits holding more than a seat simultaneously. In terms of clauses (b), a person is prohibited from being a member of Z.P. for more than one electoral constituency and the rules should be providing for vacation of but one seat by such person elected from more than one electoral constituency. Though this provision does not apply in the present case but the object was to eliminate the dual membership representing two electoral constituencies. Now if both the constituencies are within the same Panchayat, in that event he has to give up but one seat. This presupposes that one person can represent only one constituency. Thus, a person cannot be treated to hold a dual membership in two Z.Ps.
There cannot be a member in Champawat Z.P. and an office-bearer in Pithoragarh Z.P. In order to be an Upadhyaksha, one has to be a member elected from the electoral constituency of that Z.P.
21. Under Section 19, Adhyaksha and Upadhyaksha are to be elected in every Z.P. by the elected members of the Z.P. from amongst themselves. On account of the transitory provision provided in sub-section (3) of Section 17, permits continuation of the member elected from the electoral constituency of the newly created district till the establishment of the new Z.P. by fiction. But as soon Z.P. of the newly created district is established, the members elected from the electoral constituency falling within the newly established Z.P. and no longer compose the Z.P. of the erstwhile Z.P. in view of specific provision of Section 18. If a person holds dual membership of the same Z.P., he cannot be expected to hold dual membership in two different Z.Ps. even when a new Panchayat is established out of an old Panchayat. Then again Jeevan Lal not being a member elected from the electoral constituency of Pithoragarh Z.P. after the Z.P., Champawat was established, he cannot remain a member of the said Z.P. and continue to be an Upadhyaksha therein. On the establishment of the new Z.P., he automatically ceased to be a member of the Pithoragarh Z.P. and disqualified from holding the post of Upadhyaksha of Z.P., Pithoragarh. Rule 18C provides that persons included in the electoral roll for the electoral constituency of Z.P. shall be entitled to vote on any election thereto and be eligible for election to the membership or to any office in the Z.P. Thus, the primary qualification for being elected as a member of the Z.P. to an office in the Z.P. one has to be a voter in the electoral constituency of the Z.P. concerned. Jeevan Lal having been a voter in the electoral constituency now falling in Champawat, ceded from Pithoragarh, cannot claim any entitlement to be eligible to any office to Z.P., Pithoragarh though he is eligible to the membership of Z.P., Champawat.
22. Section 19 required election of Adhyaksha and Upadhyaksha and Upadhyaksha from amongst the elected members of the Z.P. to be "elected by the members themselves. Therefore. Jeevan Lal having not been a member of Z.P., Pithoragarh, he could not continue as Upadhyaksha. The contention of Mr. Chaudhary that the term of Adhyaksha and Upadhyaksha being co-terminus with the Z.P., Jeevan Lal was entitled to continue till the term of Z.P., Pithoragarh appears to be confusing. Inasmuch as unless one has the eligibility, he cannot continue to remain Upadhyaksha. The basic requirement to hold an office being a membership of an electoral constituency within the Z.P., it is not possible to hold that an Upadhyaksha once elected shall continue till the term of the said Z.P. even though said Z.P. is ceded and a new Z.P. is established in respect of the constituencies from which a person had been elected falling within the new Panchayat. It is only-by fiction created by sub-section (3) of Section 17, the members elected from the electoral constituency of the newly created district continues to function, that too in respect of the matters prescribed in clauses (i) and (ii) of sub-section (3) of Section 17.
23. Section 13, prescribes the disqualification of membership of Kshetra Panchayat. which has been adopted by reference in Section 26 as disqualification of a member or an Adhyaksha of Z.P. By reason of Section 26, a person who is disqualified according to Section 13 is ineligible to be elected as a member under Section 18 or an Adhyaksha or Upadhyaksha under Section 19. Clause (o) of Section 13 prescribes that if a member is not registered in the electoral rolls in any electoral constituency of the Panchayat, he shall be disqualified for being chosen as and for being a member of a Panchayat. If he cannot be a member of Panchayat, he cannot hold the post of Adhyaksha or Upadhyaksha in view of Section 16, which prescribes the same disqualification as contained in Section 13 for being elected as member or as an Upadhyaksha or Adhyaksha under Section 19.
24. Thus, Jeevan Lal cannot be denied of his right as a member of Champawat Z.P. There cannot be a situation which would allow a person to remain a member of the Panchayat not being a member from the electoral constituency of that Panchayat.
25. This position has since been clarified by a notification published on 18th April, 1996 in the U. P. Gazette, whereby in exercise of the powers under Section 272 of the 1961 Act, the Governor, for the purpose of removing difficulties, was pleased to direct that the provisions of Section 18 of the said Act shall apply with the adaptation that as a result of creation of a new district, electoral constituency of Z.P. to which election of the member has been held, is defined and any area of such electoral constituency is included in the newly created district, the elected member from such constituency would be deemed to be the elected member of that Z.P. in the electoral rolls on which he is included as an elector. Thus, Jeevan Lal being the elector of an electoral constituency within the district of Champawat cannot remain a member of the Z.P., Pithoragarh even if he continues as Upadhyaksha of Z.P., Pithoragarh. But still then by reason of the notification dated 18th April, 1995, he is deemed to be a member of the Z.P., Champawat and Section 18 of the said Act is to be adopted in the manner by which the difficulties have been sought to be removed under Section 272 of the said Act. This position was further clarified by an office memo dated 28th October, 1997, bearing number 7003/33-2-27-37 G/97 TC issued by the U. P. Government Panchayat Raj Section 2. In the said office memo, it was pointed out that in pursuance of Section 17 (1) of the 1961 Act, district Panchayats having been established in the newly formed district, including Champawat, the elected members of the constituencies merged in the new district will be deemed to be a member of that district Panchayat in whose electoral list, he has been included as a voter. As a result of the difficulties being faced in the running of the Z.P. of the new formed districts due to non-election of a Chairman, Vice-chairman, Governor had authorised the District Magistrates of the concerned districts under Section 21A of the 1961 Act for running the affairs of the Adhyaksha till the election of the Adhyaksha of the district Panchayats newly created. Thus, the Panchayat of Champawat having been established before 28th October, 1997, the continuation of Jeevan Lal as an Upadhyaksha of Pithoragarh Z.P. has no relevance with regard to his being a member of the Z.P., Champawat by reason of the operation of law as discussed above.
26. The 1994 Election Disputes Rules prescribes in Rule 16 the manner of voting. It provides that elections shall be by secret ballot. In a democracy, the secrecy of the ballot is sacred and paramount. Even though when it comes to the Court, the Court is supposed to examine the ballot but still then there is some limitation for the Court. The Court can look into the ballot, itself, but it is not supposed to divulge what it has seen from the ballot having regard to the secrecy clause. The word 'secret' has been defined in Law Lexicon as to 'hide'. In the Shorter Oxford Dictionary, the word secret means 'kept from general knowledge', kept hidden or private from all or all but few. 'Secret Ballot' is a ballot in which vote is cast secretly. Thus, when the law prescribes that vote shall be by secret ballot, then the vote is to be kept hidden. It cannot be divulged or made open or made to public. Though the Court is supposed to examine it, yet, it cannot divulge or make it public, even in its judgment. The Court may explore the ballot but cannot expose it. It is not supposed to divulge at to who has voted for whom. The manner of poll is to cast the vote, Courts' jurisdiction may extend to decide the validity of a vote cast or its counting. It may examine as to in whose favour the vote is cast. But it cannot disclose or divulge the identity of the voter and expose the secret, i.e., what is hidden, even when deciding an election dispute. It cannot apply the test of presumption or otherwise in order to expose the identity of the voter. If a dispute arises whether a person is eligible to vote and if it is held, he is not, then the ballot paper through which such person has cast his vote is to be declared invalid. But there cannot be any question of disclosing or exposing as to who had voted for whom and that too, through presumption. The purpose being to hide the identity of the voter, at no cost it can be disclosed.
27. There is no question of coming to a presumption that Jeevan Lal must have voted for Madan Singh since Madhwanand had objected to his voting on 21st June, 1998, as well as on 30th October, 1998. Then again, it cannot be proved because in the present case, the ballots did not contain any signature or identification mark in order to identify the ballot of any of the voters participating in the election of Adhyaksha. This is an admitted position that the ballot papers could not be identified. Admittedly, in the present case, the presence of the voters were noted on a sheet of paper, wherein they had signed certifying that they have received the ballot papers. But there is nothing to connect the respective ballot issued to the individual participants. As such the finding of the learned Tribunal proceeded on the basis of presumption in absence of any definite proof. Thus, this presumption cannot be treated to be a fact proved within the definition of Section 3 of the Evidence Act. According to the said definition, it might be a proof that Jeevan Lal had voted. But there cannot be any proof that he had voted for whom. The presumption as provided in Section 4 of the Evidence Act, does not apply since nowhere either in the Rules or in the Act nothing is provided that there is any scope for applying Section 4 of the Evidence Act in order to presume something. Such presumption can be made only when it is so expressly provided. But then having regard to the secrecy clause, it is not open to the Court even to presume and thereby come to conclusion by which the secrecy clause is frustrated. The Court is not supposed to over-ride the secrecy clause by reason of its finding which it cannot do even when the ballot paper could be identified and is opened. There is no scope for its presumption and come to a finding to divulge the secrecy.
28. In such circumstances, the declaration of the election of Madhwanand as valid could not have been given since that would explode the secrecy clause. The Court ought to have directed holding of fresh election even if it had come to the conclusion that Jeevan Lal was ineligible to participate in the election and that his vote is to be excluded.
29. But then in the present case, Jeevan Lal having been a member of the Z.P., Champawat is eligible and entitled to vote or to be elected in the office of the Z.P. The election could not be set aside and even though it could be set aside, a fresh election ought to have been held.
30. Then again whether Jeevan Lal is a member of the Champawat Z.P. or not is disputed. The Membership Disputes Rules, 1994, covers the field of such disputes. The same could not be entered into by the learned District Judge exercising the power under the Election Disputes Act. Such disputes can be settled only by the authority under the Membership Disputes Rules. But then having regard to the clear position in law, there being no dispute with regard to membership, the contention of Mr. Negi has no relevance in the present case.
31. Be that as it may. The case of Shreewant Kumar Choudhury (supra) related to a matter under the Representative of the Peoples' Act and has no nexus so far as the present point in dispute is concerned.
32. The decision in the case of R. Chandran (supra) relates to the inclusion of a name in the electoral roll in which it was held that entry in electoral roll is conclusive and cannot be challenged, in the present case.
the inclusion of name of Jeevan Lal in the electoral constituency of Champawat is not in dispute and has not been challenged. As such, this decision also has no relevance.
33. In view of the discussions made above, it is not necessary to refer to the other submissions made by Mr. Chaudhary particularly with regard to the various Rules of Chapter 11. Rule 6. Chapter IV, Rules 33 to 47, Chapter V, Rules 42 to 52 and Chapter II, Rules 21 to 32 and Sections 20, sub-sections (1), (5), 18B, 27B and 27C of the 1961 Act and Section 114 of the Evidence Act.
34. In view of the finding that Jeevan Lal was not disqualified to participate in the election, this appeal succeeds and is allowed accordingly. The judgment and order dated 27th October, 1999, passed in Election Petition No. 146 of 1998 by the learned District Judge, Pithoragarh, is hereby, set aside. There shall be no order as to costs.