Rajasthan High Court - Jodhpur
M/S Binani Cement vs . State Of Rajasthan & Ors. on 19 January, 2015
Author: Sunil Ambwani
Bench: Sunil Ambwani
1
51 D.B.CIVIL SPECIAL APPEAL (W) NO. 48/2015
M/s Binani Cement Vs. State of Rajasthan & Ors.
DATE OF ORDER ::: 19th January 2015
HON'BLE THE ACTING CHIEF JUSTICE MR.SUNIL AMBWANI
HON'BLE MISS JUSTICE JAISHREE THAKUR
Mr.Niraj Kumar Jain for the appellant Mr.Kuldeep Mathur ) Mr.Rajesh Panwar,AAG) for the respondents ___ The application for leave to appeal to file this special appeal is allowed.
Copy of the petition has been given to Shri Kuldeep Mathur, learned counsel who has appeared for the petitioner in the writ petition. Copy of the petition will also be served on learned Additional Advocate General for the State of Rajasthan.
An election programme was issued by the State Election Commission on 24.12.2014 providing for notification dated 03.01.2015. for electing Members of Zila Parishad, Sarpanch and Panch. The notification has since been issued and the dates for polling in three phases were fixed respectively on 15.1.2015, 24.01.2015 and 30.01.2015.
The writ petition giving rise to this special appeal was filed by an elected Sarpanch of Gram Panchayat, Aamli assailing legality and validity of the order dated 15.12.2014 passed by respondent No.4 Electoral Registration Officer, Pindwara District Sirohi wehreby names of 545 persons residents of Binani Gram were directed to be included in the Electoral Rolls 2014 of Ward No.5 of Gram Panchayat, Aamli.
The inclusion of name of 545 persons at the instance of M/s Binani Cement was challenged on the ground that 545 2 persons who sought to be included in Ward No.5 of Gram Panchayat, Aamli are not the residents of Gram Panchayat, Aamli within its geographical area. The total number of voters of Ward No.5 comes to 278 which includes 147 male and 126 female. It is stated that the Company does not have any right to make an application for inclusion of the names of the persons who are living within the area of Binani Gram in which company of Binani Cement is situate. It is further stated that time for giving objection was not provided and that earlier an application on behalf of 121 persons under Rule 13(2) of the Rajasthan Panchayati Raj (Election) Rules, 1994 was rejected.
Learned Single Judge has referred to an order dated 15.01.2015 passed in Writ Petition No.235/2015, in which, the question of maintainability of the writ petition was decided in favour of the petitioner. He recorded his prima facie satisfaction that by inclusion of the names of such persons, the Electoral Registration Officer has, as a matter of act, attempted to alter the limits of Panchayat circle, which is not permissible under the law. Allowing the respondents to file reply, learned Single Judge has stayed effect and operation of the order dated 15.12.2014 passed by the Electoral Registration Officer.
It is submitted by learned counsel appearing for the appellant that once election process has started, the bar under Article 243-O of the Constitution of India has come into play and thus the Courts should not interfere in the matter on prima facie satisfaction of the error of jurisdiction in the orders passed by the Electoral Registration Officer. It is submitted that principles relating to non-interference in the electoral matters after issuance of notification have been settled since the judgment in 3 N.P.Ponnuswami Vs. Returning Officer, Namakkal Constitutency & Ors: AIR 1952 SC 64. The said judgment has been followed consistently and the same principles have been followed and set under Article 243-O in Chapter IX of the Constitution of India as amended by 73rd Amendment Act in the year 1993.
Learned counsel for the appellant has relied upon the order of this Court dated 15.01.2015 in Dulari Devi & Ors. Vs. State of Rajasthan & Ors., D.B.Civil Writ Petition No.375/2015 and other connected petitions, in which, this Court in view of the constitutional bar refused to grant interim order. Paragraphs 38, 39, 40 and 41 of the order dated 15.01.2015 in Dulari Devi (supra) is quoted below:-
"38. We further find substance in the objection raised by learned counsel appearing for the Rajasthan State Election Commission that even if the petitioners cannot be accused of any delay in approaching the Court, as there was little time at their disposal in which the Ordinance could be challenged, the Constitutional bar of Article 243-O, which has also been inserted as Section 117 in the Act of 1994, and on the principles laid down by Hon'ble Supreme Court, the Courts should not ordinarily interfere with the election process, once it has started.
39. In the present case, the impugned Ordinance was promulgated on 20.12.2014 and the election programme was announced by the Rajasthan State Election Commission on 24.12.2014, which provides for the elections in three phases for the Panchayati Raj Institutions in the State of Rajasthan, and for which, first notification was issued on 03.01.2015. Article 243-O prohibits any interference in the elections, once elections have 4 been notified. The principles laid down in Election Commission of India Through Secretary Vs. Ashok Kumar & Ors.(supra), reiterating the principles laid down by a Six Judge Bench of the Hon'ble Supreme Court in N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Ors.(supra), Mohinder Singh Gill and Anr. Vs. The Chief Election Commissioner, New Delhi and Ors., AIR 1978 SC 581, and in S.T. Muthusami Vs. K.Natarajan and Ors.(30) (supra), clearly prohibit the Court from interfering in the election process, once it has started. In para 13 of the judgment in S.T. Muthusami Vs. K.Natarajan and Ors.(supra), the Supreme Court, following the aforesaid judgments, accepted the opinion expressed by the Full Bench of the Madras High Court that though no legislature can impose limitations on the constitutional powers of the Courts, it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights, and to resolve election disputes after the elections are over. The writ petitions should not be lightly entertained in such class of cases.
40. On 18.12.2014, a Division Bench of this Court, reiterating the same principles, refrained to interfere in the matters of elections of local bodies.
41. In view of the constitutional bar imposed by Article 243-O(b)of the Constitution of India in Part- IX-The Panchayats, which has reiterated the principles of non-interference in the election matters once the election process has started, under Article 329 of the Constitution of India, and the principles established by the Hon'ble Supreme Court in such matters, we do not propose to pass any interim order in these matters. We also do not find any merit in the submission that the petitioners are not seeking interference in the electoral process, but are only praying for 5 extending the dates of filing nominations. An extension of the dates of nomination would, in our opinion, amount to interference in the election process. We are also of the view that since Part IX of the Constitution of India, does not provide for any extension of the term of Panchayats, and that the term of the Panchayats in the State of Rajasthan is going to end in January, 2015, any interim order at this stage causing interference in the process of elections for constituting Panchayats under the Act of 1994, will lead to chaos and confusion, and will create a crisis for the Rajasthan State Election Commission in holding elections."
It is submitted by learned counsel Mr.Kuldeep Mathur appearing for the respondents that the entire composition of the village was sought to be changed on an application by M/s Binani Cement. The inclusion of 545 names of the persons who are not residents of village Aamli will completely vitiate the election inasmuch as ward No.5 in Gram Panchayat, Aamli has only 275 electors. M/s. Binani Cement wants to have administrative control over the area and thus they have clandestinely included the names of 545 persons in the village affecting the right of persons who are included in the voter-list of the village.
We do not find any substance in the objection inasmuch as the orders were passed by Electoral Registration Officer, Pindwara District Sirohi on 15.12.2014; election programme was notified by the Rajasthan State Election Commission on 24.12.2014, and that the first notification for elections has been issued on 03.01.2015. No interference can be made in the elections on any of the grounds except the grounds which have 6 been referred in the judgment of Hon'ble Supreme Court in Election Commission of India through Secretary Vs. Ashok Kumar & Ors.: AIR 2000 SC 729. In this case, we do not find that the grounds for challenging the impugned order passed by the Electoral Registration Officer on 15.12.2014 fall in any of the exceptions provided in the judgment in Election Commission of India through Secretary Vs. Ashok Kumar & Ors. (supra).
A reply be filed by the respondents within a period of four weeks and rejoinder-reply, if any, be filed by the appellant within two weeks.
List on 09.03.2015.
Until further orders, effect and operation of the impugned interim order dated 16.01.2015 in S.B.Civil Writ Petition No.240/2015: Dalpat Ram Garasia Vs. State of Rajasthan & Ors. shall remain stayed.
(JAISHREE THAKUR), J. (SUNIL AMBWANI), Actg.CJ. MK