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Allahabad High Court
Smt. Shyam Sakhi And Others vs State Election Commission, U.P. … on 7 August, 2000
Equivalent citations: 2000 (4) AWC 2786, (2000) 3 UPLBEC 2097
Author: S Narain
Bench: S Narain, K Kumar


JUDGMENT

Sudhir Narain, J.

1. By this writ petition, the petitioners seek a writ of certiorari quashing the publication of the election programme for holding the election for the post of Kshetra Panchayat published in the newspaper dated 22.7.2000.

2. The facts, in brief, are that the programme of elections for Kshetra Panchayat (BDC) was notified to be held in the month of June, 2000 as per the following programme :

1.

Last
date for filing of nomination papers.

1/2.6.2000

2.

Scrutiny
and disposal of objection to
the nomination papers.

4/5.6.2000

3.

Last date
for with drawal of
nominations.

6.6.2000

4.

Publication of
final list of the contesting candidates after withdrawal.

6.6.2000

The petitioners and certain other persons submitted nomination papers, the details of which have

been mentioned in paragraphs 3 and 4 of this writ petition. It appears that the Assistant Returning Officer rejected the nomination papers of certain other candidates and the petitioners were declared as elected from their respective wards as unopposed. The petitioners have annexed as Annexures- 1 and 2 to the writ petition the proforma duly signed by the Assistant Returning Officer declaring the petitioners as elected unopposed.

3. It appears that subsequently the persons, whose nominations were rejected, submitted objections before the Returning Officer. The matter was referred to the District Magistrate. The District Magistrate reported the matter to the Election Commission on 25.6.2000. The Election Commission passed the order dated 26.6.2000 holding that by playing fraud and by wrongful means, the nomination papers have been rejected or accepted at the Instance of influential persons and directed that the fresh election should be held. In pursuance of the instructions issued by the Election Commission, the fresh notice has been published in the Daily Newspaper ‘Aaj’ dated 22.7.2000 inviting nomination papers from the candidates on the date mentioned in the said newspaper. The petitioners are challenging the action of the respondents in holding fresh election by filing the instant petition.

4. The learned counsel for the petitioners has submitted that after the petitioners were declared and elected as unopposed, the Returning Officer, District Election Officer or the State Election Commission has no jurisdiction to direct for holding the fresh election and if there was any mistake committed by the Assistant Returning Officer in rejecting the nomination papers, the aggrieved candidates can seek appropriate legal remedy. In support of his contention, the learned counsel for the petitioners has placed reliance on a decision in the case of Smt. Ram Kanti v. District Magistrate and others, 1995 AWC 1465, wherein, in the similar circumstances, it was held that after the declaration of the result, the

Election Commission has no jurisdiction to hold fresh election.

5. Sri B. D. Mandhyan. learned counsel appearing for the respondents, has submitted that if any fraud has been practised, in that circumstances, the Election Commission is entitled to enquire and pass an appropriate orders for holding the fresh election. It is stated that a fresh election should take place as fraud was pactlsed in getting the nomination papers of other persons rejected. There is no averment in the counter-affidavit that the petitioners had committed any fraud. Secondly, it is the Assistant Returning Officer who had rejected the nomination papers. If for any reason he had rejected the nomination papers, it was open to such candidate to agitate before the appropriate forum for setting aside the election.

6. The election was held under Uttar Pradesh Kshetra Panchayats and Zila Panchayats (Election of Members) Rules, 1994 (hereinafter called the Rules). Rule 15 provides notice of election and fixing of dates for holding the election. Rule 16 relates to presentation of nomination papers. Rule 18 provides for scrutiny of nomination papers and Rule 19 for withdrawal of candidature. The Nirvachan Adhikari is to prepare list of contestiting candidates and allotment of symbols. Rule 21 is relevant which provides that whereon preparing a list under Rule 20, the Nirvachan Adhikari finds that there is only one contesting candidate for a constituency, he shall forthwith declare such candidate as duly elected. Rule 21 reads as under :

“21. Uncontested elections.–(1) Whereon preparing the list under Rule 20, the Nirvachan Adhikari finds that there is only one contesting candidate for a constituency, he shall forthwith declare such candidate as duly elected.

(2) The Nirvachan Adhikari shall report to the District Magistrate, the names of the candidates declared elected under

this rule and the nature of seats (whether reserved or unreserved) to which they were elected number of seats of either nature remaining unfilled.”

Rule 22 provides the procedure for election in respect of contested elections. The Assistant Returning Officer had rejected the nomination papers submitted by other candidates and thereafter he had prepared the list under Rule 21 of the Rules. There was no contesting candidate except the petitioners in their respective wards. The Assistant Returning Officer declared the result of the petitioners as elected in a prescribed form 27. The copies of such declarations have been annexed as annexures-1. 2 and 3 to the writ petition.

7. In the counter-affidavit filed on behalf of the respondents, it is stated that on scrutiny, it was found that the nomination papers of other candidates of the wards in which the petitioners were declared elected as unopposed were wrongly rejected. Those candidates submitted complaints to the District Magistrate and on such complaints, the District Magistrate asked for a report from Block Development Officer and the Returning Officer. He constituted an Enquiry Committee consisting of the District Saving Officer, Assistant Registrar Co-operative and District Panchayat Officer to submit a report. The Committee submitted the report on 19.6.2000 that the nomination papers were wrongly rejected by the Assistant Returning Officer. On this report, the Election Commission passed order on 26.6.2000 holding that nomination papers were wrongly rejected under the influence of other parties and directed for holding the election. He purported to have exercised power under Article 243T of the Constitution of India. Article 243T of the Constitution of India does not empower any authority to set aside an election. It provides for reservation of seats for the scheduled caste and scheduled tribes in every Municipality and reservation for women etc. This Article does not contemplate any enquiry to be

conducted by the Election Commission in respect of any election which had already taken place. Rule 18 provided for scrutiny of nomination and under sub-rule (2) of Rule 18 the Returning Officer may reject any nomination paper on the grounds mentioned therein which reads as under :

“(2). The Nirvachan Adhikari may reject any nomination paper on anyone or more of following grounds :

(a) that the candidate is not qualified under the Act to be chosen to fill the seat ;

(b) that the candidate is disqualified for being chosen to fill the seat under Section 13 or Section 26 of the Act;

(c) that there has been failure to comply with any of the provisions of Rule 16 ; or

(d) that the signature of the candidate or his proposer is not genuine or has been obtained by fraud.”

8. The candidate, who has any grievance after rejection of nomination paper, he could have raised objection in accordance with law if his nomination paper was rejected and after the election, he could take appropriate proceedings for setting aside election in accordance with law. The Rules 1994 do not confer any power on the Election Commission to make an enquiry itself and declare an election as Invalid. In Smt. Ram Kanti v. District Magistrate and others. 1995 AWC 1465. where the women candidates had filed nomination papers for election for the office of Pradhan of Gram Panchayat, the result of the petitioner therein was declared as elected unopposed on the ground that nomination papers of other candidates were rejected and as such the petitioner was the only candidate for the post. Rule 109 of Panchayat Raj (Election of Members. Pradhans and Up-Pradhans) Rules. 1994 is similar as Rule 21 of the Rules in question and a Division

Bench of this Court held that after the declaration of result, the Election Commission has no power to cancel such election.

9. The learned counsel for the respondents contended that the Returning Officer is undet a duty under sub-rule (2) of Rule 21 to report to the District Magistrate the names of the candidates declared elected and nature of seats (whether reserved or unreserved) to which they were elected the number of seats of either nature remaining unfilled. It is contended that this sub-rule implies that the election is not final till the matter is finally accepted by the District Magistrate. The Returning Officer is only required to inform the District Magistrate but sub-rule (2) of Rule 21 does not confer any power on the District Magistrate to make any enquiry and hold the election as Invalid.

10. The learned counsel for the respondents further contended that the result was declared by the Assistant Returning Officer and he had no Jurisdiction either to reject the nomination papers under Rule 18 or to prepare a list under Rule 20 or declare the result under Rule 21 of the Rules. It is only the Nirvachan Adhikari (Returning Officer) who has to perform such .duty. Rule 6 provides that the District Magistrate may appoint one or more Sahayak Nirvachan Adhikaris to assist any Nirvachan Adhikari in the performance of his functions and sub-rule (3) specifically provides that Nirvachan Adhikari shall include a Sahayk Nirvachan Adhikari performing any function which he is authorised to perform under this rule. Rule 6 reads as under :

“6. Sahayak Nirvachan Adhikari.– (1) The District Magistrate may appoint one or more Sahayak Nirvachan Adhikaris to assist any Nirvachan Adhikari in the performance of his functions.

(2) Every Sahayak
Nirvachan Adhikari shall, subject
to the control of Nirvachan
Adhikari be competent to perform

all or any of the functions of Nirvachan Adhikari.

(3) References in these rules to the Nirvachan Adhikari shall, unless the context otherwise requires be deemed to include a Sahayak Nirvachan Adhikari performing any function which he is authorised to perform under this rule.”

11. In view of sub-rule (3) of Rule 6 Sahayak Nirvachan Adhikari was entitled to perform any of the functions which under the rules were to be performed by the Nirvachan Adhikari.

12. Lastly, it may be noted that certain enquiry is alleged to have been conducted against the petitioners without affording any opportunity of hearing to them by the respondents. Their action was wholly against the principles of natural justice.

13. In view of the above, the writ petition is allowed and a writ of mandamus is issued restraining the respondents to hold fresh election for the post on which the petitioners have been declared elected unopposed. It is, however, made clear that the candidates whose nomination papers were rejected will be entitled to agitate the matter in accordance with law before the appropriate authority.


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