Prem Ballabh Brijwasi vs Dr. Kedar Palariya And Others on 9 June, 2021

[Cites 6, Cited by 1]

Uttarakhand High Court

Prem Ballabh Brijwasi vs Dr. Kedar Palariya And Others on 9 June, 2021

(Via Video Conferencing) After having heard the learned counsel for the parties, the factual backdrop of the controversy are that, the petitioner, is a returned candidate, of the concluded election of Member of Zila Panchayat for Ward No.26, Amritpur (General) constituency. In the present Writ Petition, the petitioner/opposite party to the Election Petition, has put a challenge to the order dated 12th April, 2021, which was passed by the learned District Judge, Nainital, in Election Petition No. 01 of 2020, Dr. Kedar Palariya Vs. Prem Ballabh and others, by virtue of which, the learned District Judge has decided the issue No.4, which was modulated by Election Tribunal, as under :-

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2. The issue was with regard to the aspect pertaining to the necessity of a prior reference, which was to be made by the competent authority, as provided under the Act, for the purposes of institution of the Election Petition, as contemplated under Sub-section (10) of Section 131-H of the Uttarakhand Panchayati Raj Act, 2016 (Amendment Act No.18 of 2020), Section 131-H of the Act, as a whole, is extracted hereunder:-

"l31-H (l) The election of a person as Pradhan or UpPradhan or as member of Gram Panchayat shall not be called in question except by an application presented to such authority within such time and in such manner as may be prescribed, on the ground:-

(a) that this election has not been free election by reason that the corrupt practice of bribery or undue influence has extensively prevailed at the election; or

(b) that the result of the election has been materially affected-

(i) by the acceptance or rejection of any nomination in improper manner; or

(ii) by gross failure to comply with the provisions of this Act or the rules framed there under. (2) The following shall be deemed to be corrupt practice of bribery or undue influence for the purposes of this Act-

(a) bribery, namely :-

(i) a person to stand or not to stand or to withdraw from being a candidate at an election; or

(ii) with objective of inducing any elector to vote or refrain voting of an election direct or indirect or to any person for the thing that :-

(1) a person for having so stood or not stood, for having withdrawn his candidature;

(2) an elector for having voted as refrained from voting for this purposes:

To propose or promise of any seat or reward on the port of a candidate is any other person what so ever with the connivance as served.

(b) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of a candidate or of any other person with the connivance of the candidate with the free exercise of any electoral right:

Provided that without prejudice to the generality of the provisions of this clause any such person as is referred to therein who -

(i) threatens any candidate, or any elector, or any person in whom a candidate or an elector is interested with injury or any kind including social ostracism and ex-communication or expulsion from any caste or community; or

(ii) induces or attempts to induce a candidate or any elector to believe that he or any person in whom he is interested will become or will, be rendered an object of divine displeasure or spiritual censure shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause, 3 (3) The application under sub-section (1) may be presented by any candidate at the election or any elector and shall contain such particulars as may be prescribed;

Explanation :- Any person, who filed a nomination paper at the election whether such nomination paper was accepted or reject, shall be deemed to be a candidate at the election.

(4) The authority to whom the application under Sub- section (1) is made shall, in the matter of -

(i) hearing of the application and the procedure to be followed at such hearing,

(ii) setting aside the election or declaring the election to be void or declaring the applicant to be duly elected or any other relief that may be granted to the petitioner have such powers and authority as may be prescribed.

(5) Without prejudice to the generality of the powers to be prescribed under sub-section (4) the rules may be provided for summarily hearing and disposal of an application under sub-section (1).

(6) Any party aggrieved by on order of the prescribed authority who shall be Assistant Collector (first class)/Pargana Magistrate of concerned Tehsil/Pargana upon an application under subsection (1) may, within thirty days from the date of the order, apply to the District Judge for revision of such order or any one or more on the following grounds; namely

(a) that the prescribed authority has exercised such jurisdiction not vested in it by law;

(b) that the prescribed authority has failed to exercise such jurisdiction so vested;

(7) The District Judge may dispose of the application for revision himself or may assign it for disposal to any Additional District Judge, Civil Judge or Additional Civil Judge under his administrative control and may recall it from any such officer or transfer it to any other such officer.

(8) The revising authority mentioned in sub-section (7) shall follow such procedure as may be prescribed, and may confirm, vary or rescind the order of the prescribed authority or remand the case to the prescribed authority for re-hearing and pending its decision pass such interim orders as may appear to it to be just and convenient.

(9) The decision of the prescribed authority, subject to any order passed by the revising authority under this section, and every decision of the revising authority passed under this section, shall be final.

(10) If any question arises that any person is legally elected as a Pramukh, Up-Pramukh or member of Kshettra Panchayat or Chairman, Vice-Chairman or Member of Zila Panchayat or not or he is eligible to be such Pramukh, Up- Pramukh or Member of Kshettra Panchayat or Chairman, Vice- Chairman or Member of Zila Panchayat or not then that question shall be "referred to Judge", which means District Judge and its includes any other subordinate Civil Judge nominated on adhoc by District Judge under it, in prescribed manner, whose decision shall be binding and final.

If Judge decides that any person is not legally elected as a Prarmukh, Up-Pramukh or Member of Kshettra Panchayat or Chairman, Vice-Chairman or Member of Zila Panchayat or he is not eligible to be such Pramukh, Up-Pramukh or Member of Kshettra Panchayat or Chairman, Vice-Chairman or Member of Zila Panchayat then he shall not remain as a Pramukh, Up- Pramukh or Member of Kshettra Panchayat or Chairman, Vice- Chairman or Member of Zila Panchayat from the date of such decision.

Explanation: Duration fixed for submitting the objection regarding the election of any person in the three tier Panchayat General election, 2019 shall commence from the date of commencement of this Act."

3. The respondents, herein, who had put a challenge to the election of the petitioner, pertains to his election as members of Zila Panchayat by preferring an Election Petition, invoking the provisions contained under Section 131-H (10) of the Act, as the Election Petition, herein, the matter would fall under Section 131-H (10), for Zila Panchayat. It was challenge of the petitioner, as the returned candidate, on the ground that the District Judge, was not competent to decide the Election Petition on his own; without the same being referred to be adjudicated to him, for adjudication, in terms of the language used under Sub-section (10) of Section 131-H, which makes a reference of election dispute to a Judge, that means, that the referring authority would be an authority other than the Judge, defined under the Act of 2016.

4. In order to answer the same, the learned counsel for the respondents, submitted that the issue of competence of making reference by an authority, has already been decided by the Coordinate Bench of this Court by the judgment dated 19th August, 2020, whereby, the power of reference has been conferred by the High Court to the "District Magistrate", and it was made applicable, qua those petitioners/petitions only, which were pending at that particular point of time and were the subject matter of consideration in the bunch of the Writ Petition, which was then filed before the Coordinate Bench.

5. After having gone through the judgment dated 19.08.2020, particularly that as contained in para 27 of the judgment, if it is read in conjunction with the provisions of Sub-section (1) of Section 131-H, where the election of a person, as Pradhan or Up- pradhan of Gram Panchayat, is procedurally contemplated to be challenged and made as a subject matter of challenge, the reference of it is contemplated under Sub-section (6) of Section 131-H and the power of 'reference' has been legislatively vested with the Prescribed Authority, who has been defined as to be the Assistant Collector (1st Class)/ Pargana Magistrate of concerned Tehsil/Pargana. Its an authority designated under the Act, to make a reference of Election dispute, contemplated under Section 131-H (1) only.

6. In that eventuality, if the aforesaid analogy is drawn, that where the reference of an election dispute, by the designated authority, is a condition precedent and mandatory, for the purposes of the very institution of an Election Petition before a Judge, challenging the election, in that eventuality, the Act of 2016, ought to have clarified the authority of office, vested with the power for the purposes of making a 'reference', where the challenge is given to the election of a member of Kshettra Panchayat or Zila Panchayat, as contemplated under Section 131-H (10), which is a provision independent to the provisions contained under Section 131-H (1), 6 which relates to Gram Panchayat, a district local body under Article 243 of the Constitution of India, which falls under Part-IX of the Constitution of India, as contained under Article 243-B, i.e. Panchayat at village level, with which, we are not concerned in this case, the panchayats at intermediary level and lastly it deals with Zila Panchayat. Article 243-B is extracted hereunder :-

"243-B. Constitution of Panchayats. - (1) There shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of this Part.

(2) Notwithstanding anything in clause (1), Panchayats at the intermediate level may not be constituted in a State having a population not exceeding twenty lakhs."

7. In this Writ Petition, we are concerned with the election of Zila Panchayat, which is altogether a distinct level of Panchayat, under the Constitution, which cannot be equated with Gram Panchayats at village level. But, unfortunately, there is a vacuum prevailing in the provisions contained under Section 131-H (10), relating Kshettra and Zila Panchayat, because the referring authority has not been defined or classified therein, by any specific terms, under the Act.

8. This Court is of the view, that if Section 131-H itself is taken into consideration in its totality, the preference of an Election Petition, contemplated therein by an aggrieved person, has been independently splitted in its applicability in relation to the election of Office of "Pradhan, Up-pradhan or as a Member of Gram Panchayat", which is in much distinction to the office of "Pramukh, Up-pramukh or member of Kshettra Panchayat, Chairman and Vice Chairman or member of Zila Panchayat", which is contemplated under Sub-section (10) of Section 131-H. Meaning thereby, Section 131-H (1), the Election Petition contemplated therein is altogether independent, to the Election Petition, provided under Sub-section (10) of Section 131-H. 7

9. Hence, as per the opinion of this Court, the legislature must have mentioned the office of authority, who would be competent to make a reference of an Election Petition under Sub-section (10) of Section 131-H, so far it related to giving challenge to the Election of Pramukh, Up-pramukh or members of Kshettra Panchayat or Chairman, Vice Chairman or Members of Zila Panchayat. But unfortunately, the legislature in its specific terms and intention had not specified any authority or the office, who would be competent to make a reference, unlike the provisions provided under Sub-section (1) of Section 131-H, so far it related to the election of Pradhan or Up- pradhan or Gram Panchayat.

10. Hence, I am of the view that there is a vacuum in the legislature with regard to the area of reference for challenging the election under Sub-section (10) of Section 131-H.

11. Hence, I am of the view that in the absence of there being any referring authority, defined or provided under Section 131-H (10), as it has been done in relation to the Election Petitions, pertaining to the office of Pradhan or Up-Pradhan, the Coordinate Bench while exercising its extra ordinary jurisdiction under Article 226 of the Constitution of India, could not have acquired or adorned to itself a legislative competence, to vest a power of reference on the "District Magistrate", when and where there is a challenge given to the election of members of Zila or Kshettra Panchayat, as it has been observed in para 27, which is extracted hereunder :-

"27. Since in the entire Act, there is no provision providing for the mode & manner of making reference of election dispute to the District Judge, therefore, with a view to remove any doubt, which may be raised later, in the interest of justice, this Court by exercising its extraordinary powers under Article 226 of Constitution of India, provides that petitioners, who are aggrieved by the result of election of 8 Members and Office Bearers of Kshettra Panchayat or Zila Panchayats can raise an election dispute by presenting the Written Petition before the District Magistrate and the District Magistrate shall refer such dispute to the District Judge for adjudication and the District Judge shall thereafter enter into such reference. It would be incumbent upon the District Magistrate to refer the election dispute to the District Judge as early as possible; but, not later than 48 hours from the date of such presentation. It is further provided that limitation would stop running, the moment, the Written Petition is presented before the District Judge."

12. With all humility and reverence at my command, I am in respectful disagreement with the view taken by the Co-ordinate Bench, in the judgment, which was rendered on 19th August, 2020, in a Bunch of Writ Petitions, with the leading Writ Petition (M/S) No. 3350 of 2019, Bhupendra Singh Vs. State of Uttarakhand and others.

13. Hence, questions are formulated and a reference is made to the Hon'ble the Chief Justice, for constituting a larger Bench to answer the questions, as referred below:-

"1. As to who would be the competent authority under Section 131-H (10), for the purpose to make reference for institution of Election Petition under Section 131-H (10), for challenging the election of the members of Zila Panchayat because in the legislature, there is a vacuum which still persists?

2. As to whether the Writ Court under Article 226 of the Constitution of India, can adorn to itself a legislative power to vest an authority for making the reference with the District Magistrate for questioning an election to members of the Zila Panchayat ?"

3. As to whether under Article 226 of the Constitution of India, High Court, can create or grant a power on a particular authority, not contemplated under the Act, or beyond the provisions of Act ?

14. Registry of this Court is directed to place the matter before the Hon'ble the Chief Justice, on an administrative side for constitution of a large Bench to answer the said aforesaid questions.

15. Having said so, as far as the present Writ Petition is concerned, where the District Judge by the impugned order dated 12th April, 2021, has decided the matter contending thereof that no reference as such was required to be made under Section 131-H (10), in the absence of there being a vacuum in the legislature, the said decision and the ratio of this Court in the earlier judgment applied on the basis of the judgment of the Coordinate Bench, as per my view, at this stage, it cannot be a ratio to sustain for challenging an Election of office members of Zila Panchayat. As such, the proceedings of Election Petition No. 1 of 2020, Dr. Kedar Palariya Vs. Prem Ballabh and others, would be kept in abeyance till the next date of listing.

(Sharad Kumar Sharma, J.) 09.06.2021 Shiv

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Uttarakhand High Court