- (1.) SMT . Shyam Dulari Devi who was one of the candidate for the post of Pradhan for Gram Panchayat Bhatgawan has approached this Court substantively for following reliefs: "(i) Issue a writ, order or direction in the nature of Mandamus calling for the records of the impugned election of the office of Pradhan of Gram Panchayat Bhatgawan, P. O. Vijai Kaf, Police Station Ahirali, Tehsil Hata, District Kushi Nagar. (ii) Issue a writ, order or direction in the nature of Mandamus commanding the respondent No. 2 to conduct inquiry into the matter on the alleged complaint dated 18-8-2005 of the petitioner and to take action against the guilty authorities/persons in accordance with law. (iii) Issue an ad interim mandamus not to give effect and operation of the result declared on 29-8-2005 of election of Gram Panchayat, village Bhatgawan, Post Vijayi Kaf, P. S. Ahirauli Bazar, Tehsil Hata, District Kushi Nagar and restrain the respondent No. 4 from Administering oath of the office of Pradhan to respondent No. 7 which is scheduled to be held on 2nd September 2005, during the pendency of the writ petition so as to secure the ends of justice."
(2.) BRIEF facts of the case as mentioned in the writ petition is that Notification had been issued by the Chief Election Commissioner U. P. at Lucknow on 18-7-2005 regarding holding of Gram Panchayat Elections in the State of U.P. Polling of Gram Panchayat Bhatgawan, District Kushi Nagar was scheduled to take place on 20-8-2005. Petitioner and three other contestants contested for the office of Pradhan of Gram Panchayat Bhatgawan, District Kushi Nagar. It has been stated that village Bhatgawan is located on the extreme border of territorial limits of District Kushi Nagar, with adjoining District Gorakhpur and at a distance of three Kms. there is village known as Sonebarsa Khurd which falls in Tehsil Chauri Chaura, District Gorakhpur. It has further been contended that village Bhatgawan and village Sonebarsa Khurd are thus adjoining villages with common agriculture fields. Election for Gram Panchayat Sonebarsa Khurd, District Gorakhpur was held on 17-8-2005. It has been contended that family of respondent No. 7 Ram Samujh have got their names inserted in the voter lists of 2 or 3 Gram Panchayats simultaneously, namely at Gram Panchayat Bhatgawan, Gram Panchayat Sonebarsa Khurd and Gram Panchayat Ramu Diha. Petitioner has asserted that objections in this respect has been raised. It has been asserted that on 17-8-2005 the petitioner and many other persons openly saw (1) Jai Prakash son of Ram Bilas (2) Smt. Lilawati W/o Jai Prakash (3) Rajeshwar @ Bhola S/o Jai Prakash (4) Smt. Kusmawati @ Rita W/o Rajeshwar @ Bhola (5) Chhedi S/o Ram Bilas (6) Shakuntala W/o Chhedi (7) Chndrabhan S/o Ram Bilas (8) Smt. Kaushalya W/o of Chandra Bhan (9) Uma Shankar S/o Ram Bilas and (10) Smt. Vandana W/o Uma Shankar casting their votes in the election of Gram Panchayat Sonebarsa Khurd of District Gorakhpur. Petitioner has asserted that when all these persons had already cast their votes on 17-8-2005 then they were not at all entitled to cast their votes in election of Gram Panchayat Bhatgawan, District Gorakhpur, which was scheduled for 20-8-2005. In this background on 18-8-2005 application was moved before Election Officer/Sub-Divisional Magistrate Hata, District Kushi Nagar mentioning therein that all these persons have already exercised their right to cast vote in the election of Gram Panchayat Sonebarsa Khurd, District Gorakhpur on 17-8-2005, as such they should be refrained from casting their votes in the election dated 20-8-2005. Petitioner submits that in spite of complaint being made no action was taken on the same and in the election which was scheduled/fixed on 20-8-2005 all these persons whose names have been mentioned above participated in the election of Gram Panchayat Bhatgawan, District Kushinagar. After polling was over in the counting there is difference of only three votes and as such said election has been materially affected on account of participation of all these persons, which occasioned failure of justice qua the petitioner. It has been contended that on the basis of result declared oath is scheduled to be administered on 2-9-2005, as such this Honble Court should come to the rescue of the petitioner. Sri Sant Sharan Upadhyaya, Advocate, appearing on behalf of the petitioner submitted with vehemence that in the present case 10 persons, whose names have been referred to above, had already cast their votes in the election of Gram Panchayat Sonebarsa Khurd, District Gorakhpur on 17-8-2005 then in that event they were not entitled to cast their votes again in the election dated 20-8-2005 qua Gram Panchayat Bhatgawan, District Kushinagar and their participation is clearly in breach of sub-section (6) of Section 9 of the U. P. Panchayat Raj Act 1947 which clearly provide that no person shall be entitled to be registered in the electoral roll for more than one Gaon Sabha or more than once in the electoral roll for the same Gaon Sabha and as undisputed position is to the effect that these 10 persons have been enrolled as voters in both Gram Panchayats and have participated in both the elections, as such their participation on second occasion has materially affected the election, as such election of Respondent No. 7 Sri Ram Samujh is liable to be set aside and oath is not liable to be administered to him. In this connection he has placed reliance on paragraphs 3 and 4 of the judgment in the case of Sher Singh Budh Singh v. State of Punjab reported in AIR 1965 Punjab 361 for the proposition that if participation of persons is violative of statutory provision then the said election is no election in the eyes of law and result declared qua the same is illegal. Paragraphs 3 and 4 of the said judgment is quoted below: "(3). Now Section 18 of the Representation of the People Act 1950 which deals with apart from other matters the preparation of electoral rolls, lays down that no person shall be entitled to be registered in the electoral roll for any constituency more than once. It is therefore, obvious that the supplementary roll as prepared in the present case, was illegal. The learned counsel for the respondents has not been able to justify the inclusion or registration of the same voters at more than one place as indeed he could not in view of Section 18 but he has contended strenuously, firstly that even if elections were held on these rolls there should be no interference by this Court on the writ side inasmuch as an election petition has already been filed by the petitioners which is pending before the prescribed authority in which identical allegations have been made and secondly even if it is established that the rolls were defective the petitioners cannot succeed unless they show that the result of the election was materially affected thereby. My attention has been invited to Section 13-O of the Punjab Gram Panchayat (Amendment) Act 1962, which gives the grounds for setting said elections. Clause (d) of Sub-section (1) of Section 13-O of the Act reads as under : "(d) that the result of the election in so far it concerns the elected person, has been materially affected - * * * * * * * * * * * * * * * * * * * * (ii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void." The argument raised is that if the same voter has voted twice, it would be improper reception of the vote being contrary of the provisions of Section 18 inasmuch as a voter is entitled to exercise only one vote. It should therefore be in the province of the prescribed authority to decide on the evidence which could be adduced before it whether in fact any such votes were cast. If it is found that the same person did not exercise his vote more than once then there would be no grievance. On the other hand, the learned counsel for the petitioners contends that the prescribed authority is totally debarred from going beyond the rolls and looking into the validity of the votes cast by the voters pursuant to the rules. It is said that it is settled law that the roll or the register of elections must be treated as final and the finality has been extended even qua the Election Tribunal. Reliance has been placed in this connection on my decision in Lekh Raj v. Cantonment Board, AIR 1958 Punj 356 and other authorities out of which S. B. Javaregowda v. Lakkigowda, AIR 1958 Mys 73 may be mentioned. In that case it was held - "The Election Tribunal has no jurisdiction to go behind the electoral roll and decide whether the particular voter has been validly enrolled or not. Jurisdiction of the Election Tribunal at the best extends to the consideration of the validity or otherwise (a) of the acceptance or rejection of the nomination and (b) of the holding of the election. It does not extend to a consideration of the correctness or otherwise of the electoral roll." This seems to be with respect the correct view and the learned counsel for the respondents has not been able to point to any authoritative decision to the contrary in which any such view has been expressed that it would be open to the prescribed authority in the present case to reject as invalid a vote which has been cast more than once by a voter who has been entered in the register at more than one place and who has voted in accordance with the entries in the register. (4) The learned counsel for the petitioners had drawn my attention to Lajpat Rai v. Khilari Ram, 62 Pun LR 377 which is a Bench decision in which it was stated that if from the point of view of the real object and scope of the rules the authorities have exercised their power so unreasonably or capriciously while preparing the rolls in violation of and not under the rules, then the rolls might well be struck down. It, however, does not mean that every defect or irregularity caused by the negligence or inefficiency or breach of rules by the authorities entrusted with preparation of rolls must necessarily invalidate them but the Court should in each case examine the nature and extent of the breach, the circumstances in which it has committed, and then determine whether the roll in question is so imperfect and improper as to invalidate the election held on its basis. In that case the election was actually set aside on the ground that the roll was not valid, having not been prepared in conformity with the Municipal Election Rules 1952. This decision was commented upon in full judgment of this Court in Dev Prakash v. Babu Ram, 63 Pun LR 485 : (AIR 1961 Punj 429 (FB)), in which Dulat, J. who had agreed with the judgment in the previous case while delivering the judgment in the previous case while delivering the judgment of the Full Bench observed that an election is in its nature an expensive and time-consuming process, and if it is to be disturbed after the whole process has been gone through, there must be shown to have existed some material circumstance touching the substance of the election and not merely technical breach of a rule. Everybody agrees that if the very foundation of the Election, namely the electoral be allowed to stand, but that does not mean that any kind of defect in the roll, however, technical in its nature will suffice to reach such a conclusion. With regard to the decision in 62 Pun LR 377 distinction was drawn and certain observations were made which according to the learned counsel for the respondents have the effect of overruling the Bench decision. It is not possible to say that the Bench view was overruled, but what was said was that "the present case does not resemble that case, and the whole controversy in the present case is whether the electoral roll can be called illegal because this preliminary roll, to which objections where invited was partly prepared before the direction of the State Government for such preparation was received or because the existing Assembly roll was adopted as its basis." It does not follow therefore, that the previous decision was overruled. On the other hand, it is obvious from the observations, to which reference has already been made, that if the electoral roll is illegal no election on its basis can proceed or be allowed to stand. It will necessarily depend on the facts of each case whether the roll is illegal. It is clear that the supplementary roll in the present case was prepared in a wholly illegal manner, inasmuch as the names of a large number of voters were entered at more than one place, which constitutes a clear violation and contravention of Section 18 of the Representation of the People Act 1950. I am therefore, satisfied that the election held on the basis of such roll where altogether invalid and the mere fact that the election petition is pending will not constitute a bar to the grant of appropriate relief in the present writ petition. As it has been held by me that the Tribunal is not entitled or empowered to go into the question of illegality or illegal preparation of the rolls it is open to this Court to interfere in exercise of powers conferred by Article 226. In the result this petition is allowed and the election of respondent No. 3 as Sarpanch is hereby quashed."
(3.) LEARNED Standing Counsel on the other hand contended that this Honble Court has no authority to entertain the present writ petition and not 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.;