Rajasthan High Court - Jaipur
Gayatri Devi, Wife Of Surendra vs Suman Devi Wife Of Shiv Pratap Harshana on 28 September, 2022
Author: Mahendar Kumar Goyal
Bench: Mahendar Kumar Goyal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 6466/2022
Gayatri Devi, Wife Of Surendra, Aged About 31 Years, Resident
Of Kothun Tehsil Chaksu, At Present Member, Zila Parishad, Ward
No. 22, District Jaipur. (As Per Title Of Election Petition).
----Petitioner
Versus
1. Suman Devi Wife Of Shiv Pratap Harshana, Resident Of
Village Anandpura, Tehsil Kotkhawda, District Jaipur At
Present Resident Of 8A, Pancholi Vihar, New Sanganer
Road, Jaipur.
2. Chief Election Officer, Rajasthan Election Commission,
Lokayukt Bhawan, Vaniki Marg, C-Scheme, Ashok Nagar,
Jaipur Rajasthan. (Deleted On 11.01.2022)
3. District Collector And District Election (Returning) Officer,
District Jaipur, Collectorate Campus, Madhosingh Road,
Banipark Jaipur Rajasthan. (Deleted On 11.01.2022)
4. Sub-Divisional Magistrate And Assistant Election
(Returning) Officer, Panchayat Samiti And Sub-Division
Chaksu, District Jaipur, Rajasthan. (Deleted On
11.01.2022)
----Respondents
For Petitioner(s) : Shri Rajendra Prasad, Sr. Adv. with Shri Deepak Sharma, Shri Manvendra Singh For Respondent(s) : Shri R.K. Agarwal, Sr. Adv. with Shri Shubham Kumar Sharma Shri Satya Pal Poshwal HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL Judgment 28/09/2022 This writ petition is directed against the order dated 20.4.2022 passed by learned Election Tribunal (learned Additional Civil Judge No.15), Chaksu, Headquarters Jaipur Metropolitan-I in (Downloaded on 30/09/2022 at 09:51:08 PM) (2 of 16) [CW-6466/2022] Election Petition No.4/2021 CIS No.4/2021 CNR No.RJJM270014562021 whereby, while allowing the election petition filed by the respondent no.1/election petitioner, election of the petitioner as Member, Zila Parishad, Ward No.22, District Jaipur, has been set aside, the election has been held to be void, she has been held to be disqualified and the respondent no.1, the election petitioner, has been declared to be the elected Member from the Ward No.22.
The relevant facts in brief are that the respondent no.1 filed an election petition under Section 43 of the Rajasthan Panchayati Raj Act, 1994 (for brevity-`the Act of 1994') read with Rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994 (for brevity- `the Rules of 1994') assailing the election of the petitioner as Zila Parishad Member from Ward No.22, Jaipur on the premise that electoral roll of the Ward No.22 contained electors from certain villages of Ward No.23 and 24 as per the delimitation carried out prior to election. It was contended that had the electors from Ward No. 23 and 24 not been permitted to cast their vote in the Ward No.22 and their votes are excluded, the election petitioner would have won the election by 570 votes. It was, therefore, prayed that election of the petitioner as Ward Member be declared void, result of the election be cancelled and the election petitioner be declared as the elected candidate.
The petitioner in her reply to the election petition submitted that the election was held as per the final electoral roll of the year 2021 published on 19.4.2021 and none of the voters outside (Downloaded on 30/09/2022 at 09:51:08 PM) (3 of 16) [CW-6466/2022] the electoral roll prepared for the Ward No.22 was permitted to cast vote in the election.
On the basis of pleadings of the parties, the learned Election Tribunal framed four issues including relief. The parties led their respective evidence.
The election petition has been allowed by the learned Election Tribunal vide its order dated 20.4.2022 in terms as stated hereinabove.
Learned Senior Counsel for the petitioner, Shri Rajendra Prasad submitted that Section 18 of the Act of 1994 provides that for each Ward or Constituency so divided under this Act, there shall be prepared and maintained by or under the supervision of the State Election Commission, an electoral roll and as per Section 18C, every person, who is registered in the electoral roll of any Ward or Constituency, shall be entitled to vote in that Ward or Constituency and it shall not be permissible for such voter to cast vote in more than one Ward or Constituency or to cast vote more than once in the same Ward or Constituency. Inviting attention of the Court towards the provisions of Article 243-O of the Constitution of India, learned Senior Counsel contended that no election to any Panchayat can be called in question except by way of an election petition presented to such authority and in such a manner as is provided by or under any law made by the legislature of a State. He submitted that as per Section 43 of the Act of 1994, an election can be called in question by way of a petition presented on the prescribed grounds. Learned Senior Counsel submitted that Rule 80 of the Rules of 1994 lays down the manner of challenging an election under the Act. He submits that (Downloaded on 30/09/2022 at 09:51:08 PM) (4 of 16) [CW-6466/2022] under clause (d)(iii) of Rule 80, an election under the Act or under the Rules may be called in question on account of improper reception, refusal or rejection of any vote or the reception of any vote which was void. Shri Rajendra Prasad submitted that if the provisions of Rule 80 are read in harmony with other provisions of the Act and the Rules, it is apparent that casting of a vote by an elector registered in the electoral roll of a particular Ward or Constituency, does not fall within the mischief of Rule 80 (d) (iii).
Referring to the Chapter-II of the Rules of 1994, learned Senior Counsel submitted that delimitation of the Constituencies of a Zila Parishad has to be effected by the officer authorised by the State Government. He submitted that after the delimitation process is over, the Election Commission undertakes the exercise of preparation of the electoral rolls. Learned Senior Counsel submitted that under Rule 12 of the Rules of 1994, the draft electoral rolls are published inviting objections thereagainst and after disposal of the claims and objections, if any, received against the draft electoral roll, final electoral roll is published under Rule 17 which, as per sub-clause (2) of Rule 17, shall be the electoral roll of the Ward or the Constituency, as the case may be. He submitted that every electoral roll referred to in sub-rule (2) of Rule 17 shall continue to be in force until revised in accordance with Rule 19. Shri Rajendra Prasad canvassed that there is a provision of appeal under Rule 21 of the Rules of 1994 against disposal of claims/objections against the draft electoral rolls or against any interim alterations in the final electoral roll and decision of the Collector under Rule 21 shall be final. He submitted that the electoral roll prepared for Ward No.22 was never (Downloaded on 30/09/2022 at 09:51:08 PM) (5 of 16) [CW-6466/2022] challenged. Learned Senior Counsel submitted that indisputably, in the present case, it has not been case of the respondent no.1 that any elector not registered in the electoral roll of the Ward No.22 had casted the vote. He submitted that validity and legality of the electoral roll cannot be questioned by way of an election petition under Rule 80. Drawing attention of this Court towards the prayer made in the election petition, learned Senior Counsel submitted that it was not in tune with Rule 87 of the Rules of 1994. He further submitted that the directions issued by the Election Tribunal are also not in consonance with the provisions under the Rules of 1994 and the same could not have been issued as having not been envisaged under the Rules. Learned senior counsel submitted that while allowing the election petition, the Election Tribunal has held the petitioner to be disqualified which, by no stretch of imagination, could have been held so even if it is assumed that there was improper reception or rejection of any vote in the election. He, in this regard, also invited attention of this Court towards the cross-examination of the respondent no.1 as PW1 wherein, she has admitted that she had no grudge against the petitioner and no cause of action has arisen to her against the petitioner. He, therefore, prayed that the writ petition be allowed, the order dated 20.4.2022 be quashed and set aside and the election petition filed by the respondent no.1 be dismissed. He, in support of his submissions, relied upon following judgements of the Hon'ble Apex Court of India.
1) Nripendra Bahadur Singh vs. Jai Ram Verma & Ors.-AIR 1997 SC 1992;(Downloaded on 30/09/2022 at 09:51:08 PM)
(6 of 16) [CW-6466/2022]
2) Shyamdeo Pd. Singh vs. Nawal Kishore Yadav-AIR 2000 SC 3000;
3) Laxmi Kant Bajpai vs. Hazi Yaqoob & Ors.-AIR 2010 SC (Suppl) 102;
Per contra, Shri R.K. Agarwal, learned Senior Counsel for the respondent no.1 submitted that the entire concept of democratic set up is based on representation by an elected member from a territorial constituency. Drawing attention of this Court towards the provisions of Article 243C of the Constitution of India, learned Senior Counsel submitted that it is provided therein that all the seats in a Panchayat shall be filled up by persons chosen by direct election from territorial constituencies in the Panchayat area and for this purpose, each Panchayat area shall be divided into territorial constituencies in such a manner that the ratio between the population of each constituency and the number of seats allotted to it shall, so far as practicable, be the same throughout the Panchayat area and thus, the emphasis is on the representation based on territorial constituency which is also reflected from the provisions contained under the Act of 1994 and the Rules framed thereunder. Shri Agarwal, in this regard, placed reliance upon Section 14 which provides that a Zila Parishad shall consist of directly elected members from as many territorial constituencies as determined under sub-section (2). Section 14(2) provides that the State Government shall, in accordance with such Rules as may be framed in this behalf, determine the number of territorial constituency, not being less than 17, for each Zila Parishad area and thereupon, so divide such area into single member territorial constituencies that the population of each (Downloaded on 30/09/2022 at 09:51:08 PM) (7 of 16) [CW-6466/2022] territorial constituency is, so far as practicable, the same throughout the Zila Parishad area. Referring to the provisions of Section 18 of the Act of 1994, learned Senior Counsel submitted that the electoral roll is to be prepared for each of the Wards or Constituencies into which the area of Panchayati Raj Institution is divided under the Act. He further submitted that under Rule 18C also, every person, who is registered in the electoral roll of any Ward or Constituency of a Panchayati Raj Institution, shall be entitled to vote in that Ward or Constituency and not in any other Ward or Constituency. He further submitted that under Rule 11 of the Rules of 1994, the electoral rolls are also prepared Ward or Constituency wise and under Rule 80(d)(iii), reception of a vote by an elector who is not a Member of that Constituency, amounts to improper reception and thus, furnishes a ground to quash such an election. Referring to the provisions of Article 243-O of the Constitution of India, learned Senior Counsel submitted that it bars challenge to validity of any law relating to the delimitation of Constituencies or the allotment of seats to such Constituencies and hence, the notification issued by the District Collector dated 10.12.2019 finalising the delimitation of the Wards of Zila Parishad, Jaipur is final list for territorial representation and not the electoral rolls prepared thereafter in violation of the delimitation notification. Shri Agrawal submitted that the judgement dated 20.4.2022 is on the issues framed on the basis of pleadings of the parties which were never objected by the petitioner and the directions issued therein are in consonance with the provisions of Rule 87 of the Rules of 1994. He submitted that the respondent no.1 has rightly stated during the course of her (Downloaded on 30/09/2022 at 09:51:08 PM) (8 of 16) [CW-6466/2022] cross examinations that she has no cause of action against the petitioner inasmuch as she has challenged the election process wherein, there was improper reception of the votes by the election authorities not attributable to the petitioner. He submitted that the judgements relied upon by the learned Senior Counsel for the petitioner are of no assistance to him having been rendered in entirely different facts and circumstances wherein, in none of the judgements, the question of territorial constituency was involved. Learned Senior Counsel submitted that the judgement dated 20.4.2022 is well reasoned and is based on cogent material on record which does not warrant any interference of this Court under its writ jurisdiction. He, therefore, prayed for dismissal of the writ petition.
Heard. Considered.
Article 243-O of the Constitution of India read with Section 43 of the Act of 1994 provides that election of any Panchayat can be called in question by way of an election petition presented in such a manner as prescribed and on the prescribed grounds. Rule 80 of the Rules of 1994 provides the manner of challenging an election under the Act. Its sub-clause (d)(iii) provides inter alia that an election can be challenged if there was improper reception of any vote. The respondent no.1 filed the election petition assailing the election of the petitioner as Member, Ward No.22, Zila Parishad, Jaipur on the premise that voters from certain villages which constituted part of Wards No.23 and 24 as per the delimitation notification, were wrongly permitted to cast their vote in Ward No.22. It is undisputed that electors of certain villages which, after the delimitation notification dated 10.12.2019, were (Downloaded on 30/09/2022 at 09:51:08 PM) (9 of 16) [CW-6466/2022] part of Wards No. 23 and 24, were included in the electoral roll prepared for the Ward No.22. The question which arises for consideration of this Court is as to whether casting of votes by such electors amounts to improper reception of the votes under the mischief of Rule 80 so as to furnish a ground for assailing the subject election. As per the scheme of the Act and Rules, once the delimitation process is over by the authority appointed by the State Government, the State Election Commission takes over the work of preparation of the electoral rolls. Chapter III of the Rules of 1994 provides that after preparation of the draft electoral roll, it is published in the manner as provided under Rule 12 and the final electoral roll is published after disposal of the claims/objections, if any. Rule 18 provides that duration of every electoral roll published under Rule 17 shall continue to be in force until revised in accordance with Rule 19 and Rule 21 provides for an appeal to the District Collector against an order passed under Rule 14 deciding the claims or objections as also against an order causing interim alterations in the electoral roll under Rule 20. Indisputably, none challenged the electoral roll prepared by the competent authority for the Ward No.22, Zila Parishad, Jaipur after the delimitation notification dated 10.12.2019.
Rule 17(2) of the Rules of 1994 provides as under:
"17(2) On such publication, the roll together with the list of amendments shall be the electoral roll of the ward or the constituency."
Further, Section 18C of the Act, 1994 provides that every person, who is registered in the electoral roll of any Ward or Constituency of a Panchayati Raj Institution, shall be entitled to (Downloaded on 30/09/2022 at 09:51:08 PM) (10 of 16) [CW-6466/2022] vote in that Ward or Constituency only and no person shall vote at an election in more than one Ward or Constituency or more than once at an election in the same Ward or Constituency.
Thus, from the gamut of the aforesaid provisions, especially Section 18C and Rule 17(2), it is apparent that a person whose name is entered in the electoral roll for a particular Ward or Constituency, is entitled to cast vote in that Ward or Constituency only and in no other Ward or Constituency and the electoral roll of the Ward is the only criteria entitling a person to cast his vote. This proposition is further fortified from the provisions of Rule 30(2) which provide as under:
"30(2) The Returning Officer subject to any general or special order of the District Election Officer (Panchayats) may establish in each polling station as many polling booths as he may consider necessary and where more booths than one are so established, he shall direct that the electors of the ward commencing from and ending with specific serial numbers on the voters list thereof, or electors of more than one ward shall be admitted to cast their votes in a particular booth."
Further, Rule 35 (2) lays down that no elector shall be admitted to cast his vote elsewhere than in the polling station or in the polling booth as directed under sub-Rule (2) of rule 30. Rule 37 provides that immediately before the ballot paper is delivered to an elector, the polling officer shall satisfy himself as to the identity of the voter with reference to the entries relating to that elector in the voters' list. Thus, voting by an elector whose name finds place in the electoral roll of that Ward or Constituency, (Downloaded on 30/09/2022 at 09:51:08 PM) (11 of 16) [CW-6466/2022] cannot be construed as improper reception of vote under Rule 80 even if such voter is not a resident of the local area of that Ward or Constituency.
Their Lordships of the Supreme Court in case of Nripendra Bahadur Singh (supra), while appreciating the provisions of Section 101(d)(iii) of the Representation of People Act, 1951 which are pari materia with Rule 80(d)(iii) of the Rules of 1994 held, as under:
"20. It is not disputed that the persons whose names were recorded in the electoral roll and participated in the voting were not disqualified under Section 16 of the 1950 Act. That being the position it would have been wrong on the part of the Presiding Officer not to allow the voters whose names were recorded in the electoral roll of the constituency to participate in the voting, even though their names could have been earlier at the appropriate time legitimately excluded from the electoral roll. These voters are electors within the meaning of Section 2 (1) (e) of the 1951 Act and were entitled to vote under Section 62 of the 1951 Act.
25. Thus in a catena of cases this Court ha consistently taken the view that the finality of the electoral roll cannot be challenged in an election petition even if certain irregularities had taken place in the preparation of the electoral roll or if subsequent disqualification had taken place and the electoral roll had on that score not been corrected before the last hour of making nominations. After that dead line the electoral roll of a constituency cannot be interfered with and no one can go behind the entries except for the purpose of considering disqualification under Section 16 of the 1950 Act.
26. The election could be set aside only on the grounds mentioned in Section 100 of the 1951 Act. In this (Downloaded on 30/09/2022 at 09:51:08 PM) (12 of 16) [CW-6466/2022] case reliance was placed under Section 100(1)(d)(iii) for invalidating the election on the ground of reception of void votes. We have already shown that the electoral roll containing the particular names of voters was valid and there is, therefore, no question of reception of any vote which was void. There is, thus, no substance in that ground for challenging the election.
28. We are, therefore, of opinion that the High Court is clearly wrong in holding that the electoral roll was illegal or ultra vires with reference to the particular entries of votes and that on that account the election was liable to be set aside. We, therefore, set aside the judgment and order of the High Court and restore the election of the appellant to the U.P. Legislative Council. The election petition stands dismissed with costs. In the view we have taken it is not necessary to consider the second question with regard to the point whether the result of the election of the appellant was materially affected or not. In the result the appeal is allowed, but since the respondent has not entered appearance we will make no order as to costs."
Thus, the findings recorded by this Court as hereinabove are supported by the aforesaid judgement.
Contention of learned Senior Counsel for the respondent that it not being a case of territorial constituency, has no applicability in the present case, does not merit acceptance in view of categorical finding by the Hon'ble Apex Court that casting of the vote by an elector whose name finds place in the electoral roll prepared by the competent authority, does not amount to improper reception of the vote.
A three-Judge Bench of the Hon'ble Supreme Court of India in case of Shyamdeo Pd. Singh (supra), held as under: (Downloaded on 30/09/2022 at 09:51:08 PM)
(13 of 16) [CW-6466/2022] "13. A perusal of the above-said provisions leads to certain irresistible inferences. Article 326 of the Constitution having recognised the doctrine of adult suffrage has laid down constitutional parameters determinative of the qualifications and disqualifications relating to registration as a voter at any election. The two Articles, i.e., Article 326 and Article 327 contemplate such qualifications and disqualifications being provided for, amongst other things, by the appropriate Legislature. The fountain source of the 1950 Act and 1951 Act enacting provisions on such subject are the said two Articles of the Constitution. The provisions of Section 16 of the 1950 Act and Section 62 of the 1951 Act read in juxtaposition go to show that while Section 16 of the 1950 Act provides for `disqualifications for registration' in an electoral roll, (qualifications having been prescribed by Section 27 thereof), Sections 62 of the 1951 Act speaks of 'right to vote' which right is to be determined by reference to the electoral roll of the constituency prepared under the 1950 Act. The eligibility for registration of those enrolled having been tested by reference to Section 16 or Section 27 of the Act, as the case may be, and the electoral roll having been prepared, under the 1950 Act if a person is or becomes subject to any of the disqualifications provided in clauses (a) (b) (c) of sub-section (1) of Section 16, two consequences may follow. His name may forthwith be struck off the electoral roll, in which the name is included, under sub-section (2) of Section 16 of the 1950 Act. Even if the name is not so struck off yet the person is disqualified from exercising right to vote at the election by virtue of sub-section (2) of Section 62 of the 1951 Act. The qualifications prescribed for enrolment in the electoral roll as provided by clause (b) of sub-section (5) of Section 27 of the 1950 Act are: (i) ordinary residence in a teachers constituency, (ii) being engaged in the relevant educational institution for a total period of at least three years within the six years immediately before the (Downloaded on 30/09/2022 at 09:51:08 PM) (14 of 16) [CW-6466/2022] qualifying date. The enquiry into availability of these eligibility qualifications, under the scheme of the 1950 Act is to be made at the time of preparation of the electoral roll or while entering or striking out a name in or from the electoral roll. Section 62 of the 1951 Act does not provide that a person who is not qualified to be enrolled as an elector in the electoral roll shall not be entitled to vote at the election. To put it briefly a disqualification under Section 16 of the 1950 Act has a relevance for and a bearing on the right to vote under Section 62 of the 1951 Act but being not qualified for enrolment in the electoral roll under Section 27 of the 1950 Act has no relevance for or bearing on the right to vote at an election under Section 62 of the 1951 Act. That is the distinction between a "disqualification" and "not being qualified."
24. To sum up we are of the opinion that inclusion of person or persons in the electoral roll by an authority empowered in law to prepare the electoral rolls though they were not qualified to be so enrolled cannot be a ground for setting aside an election of a returned candidate under sub-clause (iii) or (iv) of clause (d) of sub-section (1) of Section 100 of the Representation of the People Act, 1951. A person enrolled in the electoral list by an authority empowered by law to prepare an electoral roll or to include a name therein is entitled to cast a vote unless disqualified under sub-sections (2) to (5) of Section 62 of the Representation of the People Act, 1951. A person enrolled in the electoral roll cannot be excluded from exercising his right to cast vote on the ground that he did not satisfy the eligibility requirement as laid down in Section 19 or 27(5) of the Representation of the People Act, 1950."
In case of Laxmi Kant Bajpai (supra), the Hon'ble Apex Court held as under:
(Downloaded on 30/09/2022 at 09:51:08 PM)
(15 of 16) [CW-6466/2022] "38. The averments of the appellants in the election petition do not disclose any definite cause of action. The appellant pleads that the names of the 21 localities have been wrongfully included in the electoral roll of the relevant constituency. But there has been no order by the Election Commission for the alteration of the electoral rolls of the constituency. Furthermore the Election Commission does not have the power to amend the electoral roll as there has been no fresh delimitation carried out by the Delimitation Act. The electoral rolls have been prepared keeping in view the 381 Meerut constituency, which consists of the Meerut municipality ward. This is as per the notification of the Delimitation Commission. As stated above, delimitation is to be carried out by the Delimitation Commission and in furtherance of the delimitation carried out by the Commission, the Election Commission shall proceed to prepare electoral rolls for the constituency. Therefore, there has been no default on the part of any of the authorities, so as to render any votes void. There has been no violation of any of the provisions of the Act or the rules framed thereunder. The appellant primarily relies on the communication issued by the Election Commission of India dated 24.3.2007. But as discussed above, the same cannot be construed as any direction on the part of the Commission. The averments also do not disclose any material facts. As observed by the High Court, the main concern of the appellant in effect is the addition of the 21 colonies into the Meerut constituency and not in relation to addition or deletion of names in the electoral roll. But yet there has been no specific pleading in this regard in the election petition. The pleading should have been with respect to the said inclusion of the 21 colonies into the Meerut municipality constituency which was later incorporated into the 381 Meerut Municipality constituency. In the absence of such pleadings, it can safely be said that the election petition does not disclose (Downloaded on 30/09/2022 at 09:51:08 PM) (16 of 16) [CW-6466/2022] any material facts and, therefore, High Court was right in summarily dismissing the election petition." From the conspectus of the aforesaid judgements, an exceptional legal position which emerges is that voting in accordance with the electoral roll for a Constituency cannot be held to be an improper reception of the vote so as to furnish a ground of challenge the election process under Rule 80 of the Rules of 1994 and legality and validity of an electoral roll cannot be examined in an election petition.
In the aforesaid circumstances, in the considered opinion of this Court, the learned Election Tribunal exceeded in its jurisdiction in allowing the election petition filed by the respondent no.1 on account that casting of vote by the electors, though included in the electoral roll for the Ward No.22, Zila Parishad, Jaipur, is bad in law inasmuch as such voters belonged to the villages which, in the last delimitation process, were part of the Wards No.23 and 24 and not of the Ward No.22.
Resultantly, the writ petition is allowed. The order dated 20.4.2022 passed by the learned Election Tribunal, Chaksu, District Jaipur in Election Petition No.4/2021 CIS No.4/2021 CNR No.RJJM270014562021 is quashed and set aside and the election petition filed by the respondent no.1 stands dismissed.
Pending application(s) stands disposed of accordingly.
(MAHENDAR KUMAR GOYAL),J RAVI SHARMA /Supp312 (Downloaded on 30/09/2022 at 09:51:08 PM) Powered by TCPDF (www.tcpdf.org)