- (1.) SUDHIR Agarwal, J. Aggrieved by the judgment dated 21. 10. 200j dismissing the writ petition No. 63643 of 2005, the petitioner-appellant (hereinafter referred to as 'petitioner') has filed this intra Court appeal under Chapter VII Rule 5 of the Rules of the Court.
(2.) THE petitioner was convicted under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 in Session Trial No. 43 of 1993 vide judgment dated 13lh August, 1997 passed by Special Judge, Sonbhadra and was sentenced to undergo three years' rigorous imprisonment, a fine of Rs. 5. 000 and in default of payment of fine, further six months' rigorous imprisonment. He filed an appeal No. 1272 of 1997 which was admitted on 28th July, 1997 and bail was granted. THE Appellate Court passed the following order: "admit. Let the appellant Amrendra Singh Kurrhi s/o latetara Chandra Singh be released on bail in ST. No. 43 of 1993 under Section 20 of N. D. P. S. Actor his furnishing two sureties and a personal bond in the like amount to th satisfaction of the Chief Judicial Magistrate, Sonbhadra. " An election for the post of Gram-Pradhan, village Murdhawa was held in August 2005 for which the petitioner filed his nomination on 6th August, 2005 Polling was held on 23rd August, 2005 and result was declared on 28m August 2005 wherein he was declared elected and the Election Officer also issued certificate declaring the petitioner elected as Gram-Pradhan village Murdhawa Vide certificate dated 28th August 2005. However, it appears that a complaint was made by Sri Shyam Singh that the petitioner was disqualified having been convicted in 1997 and, therefore, could not have been declared elected as Gram-Pradhan of village Murdhawa. The said complaint as enquired into by the State Election Commission, U. P. Lucknow and by order dated 22nd September, 2005 in purported exercise of power under Article 243-K of the Constitution of India read wit Section 12-BB of Sanyukt Prant Panchayat Raj Act, 1947 (hereinafter referred to as '1947 Act'), the State Election Commission, U. P. Lucknow declared the election of the petitioner illegal and has countermanded the same. Aggrieved by the said decision of the Election Commission, the petitioner preferred the aforesaid writ petition which has been dismissed by the Hon'ble Single Judge vide judgment under appeal. The Hon'ble Single Judge has found the contention of the petitioner that he was not disqualified to be incorrect. However, proceeding further, it has also taken note of certain Division Bench judgments of this Court holding that once the result of the election is declared, the State Election Commission has no jurisdiction to set aside the election but, thereafter, the Hon'ble Single Judge considering the facts and circumstances of the case in hand has declined to exercise its discretionary jurisdiction in favour of the petitioner under Article 226 of the Constitution of India and, accordingly, dismissed the writ petition. To complete the chain of events, it may also be placed on record that during the pendency of appeal, since, there was no stay either of the order of State Election Commission or of the Hon'ble Single Judge, fresh election on the post of Gram- Pradhan village Murdhawa was held wherein respondent No. 6, Sunil Kumar Gupta, has been elected as Pradhan of the village in question. Sri R. K. Jain, Senior Advocate, assisted by Sri Ashwani Mishra has submitted that once the result of an election is declared, the Election Commission becomes functus officio and has no jurisdiction to uphold the result of the election in any manner and if any person is aggrieved by result of the election, the only remedy available to him is to file an election petition and, therefore, the order passed by the State Election Commission countermanding the election on the post of Pradhan is illegal and without jurisdiction. He further submits that Article 243-K of the Constitution of India has no application in the matter and in no manner it gives any power' to the Election Commission to pass an order setting aside the result of an election result whereof has already been declared and, therefore, the State Election Commission, it is contended, has illegally usurped the power by illegally referring to Article 243-K of the Constitution. Similarly, it is said that Section 12-BB of 1947 Act also does not give any such power and, therefore, the order of the State Election Commission is wholly without jurisdiction and nullity in the eyes of law. It is contended that once it is evident that the order, impugned in the writ petition, was a nullity being wholly without jurisdiction, the writ Court ought to have interfered and set aside such an order and the Hon'ble Single Judge by refusing to exercise his jurisdiction under Article 226 of the Constitution has erred in law. He lastly contended that subsequent event that fresh election has been held wherein respondent No. 6 Sri Sunil Kumar Gupta has been elected as Gram-Pradhan of village Murdhawa will not affect the dispute in question pending this appeal since the election has been conducted afresh during the pendency of this matter this Court and therefore the same would have to abide by the result of the litigation and in case it is found that the order of the State Election Commission countermanding the election is without jurisdiction, all subsequent transactions and orders would also become non est, which would include the election of respondent No. 6 also.
(3.) ON the contrary, learned Counsel appearing for State Election Commission submits that a person, who is disqualified to hold an office can neither be declared nor be allowed to continue to hold the elected office and, therefore, not only, election of the person concerned, but even thereafter, the State Election Commission has a statutory and Constitutional obligation to see that no person, who is disqualified to hold an office should continue therein. In the case in hand, the petitioner was admittedly convicted and hence was disqualified under law to be elected as Gram-Pradhan under the provisions of 1947 Act and rules and regulations framed thereunder. Hence, the State Election Commission rightly passed the order countermanding election and in any case, since the petitioner was a person who was disqualified to hold a public office, the Hon'ble Single Judge has rightly refused to exercise discretionary jurisdiction under Article 226 of the Constitution and there is no error in the decision of Hon'ble Single Judge warranting any interference in this appeal. We have heard learned Counsel for the parties and perused the record. Besides oral submissions, the petitioner has also filed written submissions, which has also been considered by us. In our view, rival submissions give rise to the following four issues which require adjudication in this appeal. (1)Whether the petitioner suffered disqualification for election to the post of Gram-Pradhan? (2)Whether the petitioner had any legal right to continue in office after declaration of result till he is declared disqualified under Section 6-A of the Act and can such right be enforced by filing writ petition under Article 226 of the Constitution of India? (3) Whether the Election Commission could pass impugned order dated 21. 10. 2005 countermanding the election after the result of the election of the petitioner was declared? (4) Whether the Hon'ble Single Judge was right in declining to exercise discretionary jurisdiction under Article 226 of the Constitution?;