- (1.) FACTUAL matrix, in short compass, as set out in the writ peti tion is that the petitioner has filed his nomination papers for the post of Gram Pradhan and for membership of Kshetriya Samiti, for the area which was reserved for the Other Backward Classes. His nomina tion papers were accepted and he was al lotted symbol 'car' for contesting the elec tion of Pradhan and 'rising Sun' for mem bership to the District Development Com mittee. The polling was held on 14-6-2000 but before the start of the counting, the election was countermanded for the reason that the petitioner did not belong to Other Backward Classes. The petitioner claims himself to be the Gosain, which according to the Schedule No. 1 of the U. P. Public (Reservation of Schedule Caste and Schedule Tribe and Backward Classes) Act, 1994, is one of the Other Backward Classes Castes. Being aggrieved against the said order, the petitioner has filed the present writ petition.
(2.) LEARNED Counsel for the petitioner urged that the certificate was granted by the Revenue Authority mentioning there in that the petitioner belonged to Other Backward Classes. The said certificate was not cancelled by any authority as the nomination papers of the petitioner was accepted and the polling had also taken place, hence it was urged that the State Elec tion Commissioner, without giving any op portunity of hearing to the petitioner to show that the petitioner belonged to Back ward Classes, could not have counter manded the election. It was vehemently urged that the entire action of the Election Commissioner was arbitrary and hit by Ar ticle 14ofth. ' Constitution of India. Before dealing with the controver sy involved in this writ petition, it would be relevant to have a glance over the provision of Article 243-K, and Article 324 of the Constitution of India, which are reproduced below:- 243-K (1 ). The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayat shall be vested in a State Election Commission consisting of a State Election Com missioner to be appointed by the Governor. (2) Subject to the provisions of any law made by the legislature of a State, the conditions of service and tenure of office of the State Elec tion Commissioner shall be such as the Gover nor may by Rule determine: Provided that the State Election Commis sioner shall not be removed from his office ex cept in like manner and on the like grounds as a Judge of a High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his ap pointment. (3) The Governor of a State shall, when so requested by the State Election Commission, make available to the State Election Commis sion such staff as may be necessary' for the dis charge of the functions conferred on the State Election Commission by clause ( 1 ). (4) Subject to the provisions of this Con stitution, the Legislature of a State may, by law, make provision with respect to all matters relat ing to, or in connection with, elections to the Panchayats. 324 (1 ). The superintendence, direction and control of the preparation of the electoral rolls, and the conduct of, all elections to Parlia ment and to the Legislature of every State and of elections to the office of President and Vice President held under this Constitution. . . shall be vested in a Commission (referred to in this Con stitution as the Election Commission ). (2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioner, if any, as the President may from time to time fix and the appointment of the Chief Election Commis sioner and other Election Commissioner shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President. (3) When any other Election Commis sioner is so appointed the Chief Election Com missioner shall act as the Chairman of the Elec tion Commission. (4) Before each general election to the House of the People and to the Legislative As sembly of each State, and before the first general election and thereafter before each biennial election to the Legislative Council of each State having such Council, the President may also appoint after consultation with the Election Commission such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of the func tions conferred on the Commission by clause ( 1 ). (5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commission and the Regional Commissioners shall be such as the President may by Rule determine. Provided that the Chief Election Commis sioner shall not be rembved from his office ex cept in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointments: Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Com missioner. (6) The President or the Governor. . . of a State, shall when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Com mission by clause (l ). Article 243-O as well as Article 329 of the Constitution of India, which are also relevant for the purpose of the decision of this case, arc quoted below: - 243-O, Notwithstanding anything 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 purport ing to be made under Article 243-K, shall not be called in question in any Court; (b) no election to any Panchayat 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. 329. Notwithstanding anything 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 purport ing to be made under Article 327 or Article 328, shall not be called in question in any Court. (b) no election to either House of Parlia ment or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate legislature.
(3.) IT is pertinent to mention here that the language and tenor of Article 243-K and 324 of the Constitution of India more or less vest the same powers to the Elec tion Commission and the State Election Commission, Article 243-O and Article 329 of the Constitution also more or less cover the same field. Section 12-C'of the U. P. Panchayat Raj Act, provides that the election of a person as Pradhan or as mem ber of a Gram Panchayat including the election of a person appointed as the Panch of the Nayaya Panchayat under Sec tion 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 a free election by reason that the corrupt prac tice of bribery or undue influence has ex tensively prevailed at the election, (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 or the Rules framed there under. Section 14 (2) of the U. P. Kshetriya Panchayats and Zila Panchayats Adhiniyam, 1961, reads as under:- "14 (2) If any question arises as to whether a person has been lawfully chosen a member of a Kshettra Panchayat or has ceased to remain eligible to be such member the question shall be referred in the manner prescribed to the Judge, whose decision shall be final and binding. ";