Allahabad High Court
Gopal Sharma vs State Of U.P. And 4 Others on 24 June, 2021
Author: Prakash Padia
Bench: Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 9 Case :- WRIT - C No. - 13093 of 2021 Petitioner :- Gopal Sharma Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Desh Ratan Chaudhary Counsel for Respondent :- C.S.C.,Ten Singh Hon'ble Prakash Padia,J.
1. Matter is taken up through video conferencing.
2. Heard learned counsel for the petitioner and learned Standing Counsel for the respondent-State.
3. The petitioner has preferred present writ petition inter-alia with the following prayers :-
"A. In the nature of mandamus commanding the respondents nos. 3 & 4 to decide the petitioner's representation dated 04.05.2021 and order for recounting of votes in the election of Pradhan, Gram Panchayat, Rehari, Post Patrahi, Block Dobhi, District Jaunpur."
4. A preliminary objection has been raised by the learned Standing Counsel for the respondents that this Hon'ble Court has no jurisdiction to entertain the present writ petition and to interfere in the election proceeding in view of specific bar being imposed by the Constitution by means of Article 243-O (b) which provides that no election to any Panchayats shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State and as such writ petition be dismissed.
5. In order to appreciate the arguments which have been advanced, Article 243-O of the Constitution of India and Section 12C of U.P. Panchayat Raj Act 1947 are to be looked into:
Article 243-O of the Constitution of India "243-O- Bar to interference by Courts in election matters- Notwithstanding any thing in this Constitution-
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under Article 243K shall not be called in question in any Court.
(b) no election to any Panchayats shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State."
Section 12 C of U.P. Panchayat Raj Act, 1947 Section 12 C:- Application for questioning the elections-
(l) The election of a person as Pradhan or as member of a [Gram Panchayat] including the election of [a person appointed] as the Panch of Nyaya Panchayat under Section 43 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 that -
(a) the election has not been free election by reason that the corrupt practice of briber/ or undue influence has extensively prevailed at the election or
(b) that the result of the election has been materially affected-
(i) by the improper acceptance or rejection of any nomination or
(ii) by gross failure to comply with the provisions of this Act the rules framed thereunder (2) The following shall be deemed to be corrupt practices of bribery undue influence for the purposes of this Act.
(A) Bribery that is to say, any gift, offer or promise by a candidate or by any other person with the connivance of a candidate of a gratification to any person with the connivance of a candidate of gratification to any person whomsoever with the object directly indirectly of including-
(a) a person to stand or not to stand as, or withdraw from being a candidate at any election; or
(b) an elector to vote or refrain from voting at an election or as reward to.
(i) a person for having so stood or not stood or have withdrawn his candidature or
(ii) an elector for having voted or refrained from voting.
(B) Undue influence that is to say, any direct or in direct interference of 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 the clause any such person as is referred to therein whomsoever
(i) threatens any candidate, or any elector or any person in whom candidate or any elector is interested with injury of any kind including social ostracism and excommunication or expulsion from any caste or community; or
(ii) induces or attempts to induce a candidate or an elector to believe that he or any person 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 elections right of such candidate or elector within the meaning of this clause.
(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.
6. At this juncture the decision of the Hon'ble Apex Court in the case Election Commission of India v. Ashok Kumar (2000) 5 SCC 216 is being looked into, where in the context of Article 329(b) qua exercise of power under Article 226 has been extensively dealt with and it has been mentioned that words "no election shall be called in question" in the body of Article 329(b) is the determinative test of attracting aforementioned Article 329(b) and if the petition presented to the Court "calls in question an election" the bar is to be attracted else it is not. Relevant portion of the aforesaid judgement is being quoted below. Paragraphs 28 to 32 is being reproduced for ready reference.
" 28. Election dispute are not just private civil dispute between two parties. Though there is an individual or a few individuals arrayed as parties before the court but the stakes of the constituency as a whole are on trial. Whichever way the list terminates it affects the fate of the constituency and the citizens generally. A conscientious approach with overriding consideration for welfare of the constituency and strengthening the democracy is called for. Neither turning a blind eye to the controversies which have arisen nor assuming a role of overenthusiastic activist would do. The two extremes have to be avoided in dealing with election disputes.
29. Section 100 of the Representation of the People act 1951 needs to be read with Article 329(b) the former being a product of the latter. The sweep of Section 100 spelling out the legislative intent would assist us in determining the span of Article 329(b) though the fact remains that any legislative enactment cannot curtail or override the operation of a provision contained in the Constitution. Section 100 is the only provision within the scope of which an attack on the validity of the election must fall so as to be a ground available for avoiding an election and depriving the successful candidate of his victory at the polls. The Constitution Bench in Mohinder Singh Gill reported in asks us to read Section 100 widely as "covering the whole basket of grievances of the candidates." Sub Clause (IV) of Clause (d) of Sub-section (1) of Section 100 is a "residual catch all clause". Whenever there has been non-compliance with the provisions of the Constitution or of the Representation of the People act 1951 or of any rules or Orders made thereunder if not specifically covered by any other preceding clause or sub-clause of the section it shall be covered by sub-clause (IV). The result of the election insofar as it concerns a returned candidate shall be set aside for any such non-compliance as the abovesaid subject to such non-compliance, also satisfying the requirement of the result of the election having being shown to have been materially affected insofar as a returned candidate is concerned. The conclusions which inevitably follow are in the field of election jurisprudence, ignore such things as do not materially affected the result of the election unless the requirement of satisfying the test of material effect has been dispensed with the law; even if the law has been breached and such breach satisfies the test of material effect on the result of the election of the returned candidate yet postpone the adjudication of such dispute till the election proceedings are over so as to achieve in larger public interest the goal of constituting a democratic body without interruption or delay on account any controversy confined to an individual or group of individuals or single constituency having arisen and demanding judicial determination.
30. To what extent Article 329(b) has an overriding effect on Article 226 of the Constitution? The two Constitution Benches have held that Representation of the People Act 1951 provides for only one remedy; that remedy being by an election petition to be presented after the election is over and there is no remedy provided at any intermediate stage. The non obstante clause with which Article 329 opens, pushes out Article 226 where the dispute take the form of calling in question an election (see Para 25 of the Mohinder Singh Gill case) The provisions of the Constitution of the Act read together do not totally exclude the right of a citizen to approach the court so as to have the wrong done remedied by invoking the judicial forum nevertheless the lesson is that the election rights and remedies are statutory, ignore the trifles even if there are irregularities or illegalities, and knock the doors of the courts when the election proceedings in question are over. Two pronged attach on anything done during the election proceedings is to be avoided. One during the course of the proceedings and the other at its termination for such two pronged attack, if allowed, would unduly protract or obstruct the functioning of democracy.
31. The founding fathers of the Constitution have consciously employed use of the words " no election shall be called in question' in the body of Section 329(b) and these words provide the determinative test for attracting applicability of Article 329(b). If the petition presented to the Court "calls in question an election' the bar of Article 329(b) is attracted. Else it is not.
32. For convenience sake we would now generally sum up out conclusion s by partly restating what the two Constitution Bench have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove:
(1)if an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have have the effect of interrupting obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in election.
(2)Any decision sought and rendered will not amount to "calling in question an election" if it sub serves the progress of the election and facilitates the completion of the election. Anything done towards competing or in furtherance of the election proceedings cannot be described as questioning the election.
(3) subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the wall settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.
(4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the court has been sought for merely to correct or smoothen the progress of the election proceedings to remove the obstacles therein or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the court.
(5)The court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the court's indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the court would act with reluctance and shall not act, except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material".
7. Article 243-O (b) of the Constitution of India clearly mentions that no election for any Panchayats shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any act by the Legislature of a State. State Legislature has already framed U.P. Panchayat Raj Act 1947 providing therein forum in the shape of Section 12-C and also providing ground of challenge on which election petition can be filed. Election petition can be filed on the ground that same has not been a free election by reason that corrupt practice of bribery or undue influence has extensively prevailed at the election or that the result of the election has been materially affected by the improper acceptance or rejection of any nomination paper and by gross failure to comply with the provisions of this Act and Rules framed thereunder.
8. Consequently in the light of the aforementioned discussion present writ petition is not maintainable. Remedy of petitioner lies by filing election petition before Prescribed Authority under Section 12C of U.P. Panchayat Raj Act 1947. In case any election petition is filed then all endeavour shall be made by Prescribed Authority to conclude the hearing of the same preferably within period of one year, subject to cooperation being extended by the parties, without granting any unnecessary adjournment.
9. With the above direction present writ petition is dismissed on the ground of alternative remedy of election petition. No orders as to cost.
Order Date :- 24.6.2021 Pramod Tripathi