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IN THE HIGH COURT OF ALLAHABAD
I. M. Quddusi, J.
JAYDRATH SINGH ALIAS JAYDOO SINGH - Appellant
Versus
JIVENDRA KUMAR - Respondents
First Appeal 706 Of 1996
Decided On : 08/22/1997
ELECTION PETITION - MAINTAINABILITY - ELECTORS - DISQUALIFICATION OF ADHYAKSHA - JURISDICTION - U. P. KSHETRA PANCHAYATS AND ZILA PANCHAYATS ADHINIYAM, 1961 - SECTION 27(2) - U. P. ZILA PANCHAYATS (ELECTION OF ADHYAKSHA AND UP-ADHYAKSHA AND SETTLEMENT OF ELECTION DISPUTES) RULES, 1994 - RULES 33, 43, 48 - CONSTITUTION OF INDIA - ARTICLES 243K(4), 243-O(B).
Fact of the Case:
Election petition filed by electors challenging the election of Adhyaksha of Zila Panchayat. The Returning Officer declared Jivendra Kumar as elected Adhyaksha after a lottery draw as both candidates secured equal votes. The petitioners claimed that the lottery draw was illegal and sought a declaration that Jivendra Kumar was not qualified to be declared as elected Adhyaksha.
Finding of the Court:
1. The election petition filed by electors challenging the election of Adhyaksha was not maintainable. 2. The provisions of Chapter IV of the Rules, including Rule 33, are meant for candidates, while Chapter V, including Rule 48, is meant for electors. 3. Rule 48 permits an elector to raise a dispute only in relation to disqualification of Adhyaksha under Section 27(2)(c) of the Act, which arises during the currency of the term of Adhyaksha, and not at the time of election.
Issues: 1. Whether an election petition filed by electors challenging the election of Adhyaksha was maintainable? 2. Whether the provisions of Chapter IV of the Rules, including Rule 33, are meant for candidates, while Chapter V, including Rule 48, is meant for electors?
Ratio Decidendi: 1. The provisions of Article 243K(4) of the Constitution authorize the State Legislature to make laws providing for all matters relating to or in connection with elections to Panchayats, while Article 243-O(b) provides that elections shall not be called in question except by an election petition presented to such authority and in such manner as is provided by or under any law made by the Legislature of a State. 2. The intention of the Constitution is that the matters concerning elections are to be laid down by a law made by the State Legislature, but the manner of presentation of election petition, i.e., the post-election matters, may be made either by the Legislature or under the law made by the Legislature. 3. The subordinate legislation is permissible in post-election matters. 4. The State Government framed rules known as U. P. Zila Panchayat (Election of Adhyaksha and Up-Adhyaksha and Settlement of Election Disputes) Rules, 1994, in exercise of the powers conferred by Section 237(1) of the Act. These rules are consistent with the provisions of Article 243-O(b) of the Constitution. 5. Rule 33 of Chapter IV of the Rules provides that an election petition calling in question the election of an Adhyaksha by an elector can be presented to the Judge within 30 days from the date of declaration of the result. 6. Rule 48 of Chapter V of the Rules provides that if a dispute arises as to whether a person has become disqualified to be Adhyaksha, the matter shall be referred by an elector to the Judge at any time during the currency of the term of the Adhyaksha. 7. The provisions of Chapter IV are meant for candidates, while Chapter V is meant for electors. 8. Rule 48 permits an elector to raise a dispute only in relation to disqualification of Adhyaksha under Section 27(2)(c) of the Act, which arises during the currency of the term of Adhyaksha, and not at the time of election.
Final Decision: The election petition filed by electors challenging the election of Adhyaksha was dismissed as not maintainable. The judgment and order of the trial court were set aside.
( 1 ) THESE are three connected appeals arising out of the same judgment and order dated 26. 9. 1996 passed by IVth Additional District Judge, Shahjahanpur in Jaydrath Singh v. Jivendra Kumar and others, Election Petition No. 1 of 1995. The learned court below while allowing the election petition declared opposite party No. 1 before him, namely, Jivendra Kumar to have become disqualified to be the Adhyaksha.
( 2 ) BRIEF facts of the case are that Jaydrath Singh and Vijai Pratap Singh, who are appellants in first Appeal No. 706 of 1996 filed, an election petition under Section 27 (2) of Uttar Pradesh kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 (thereinafter referred to as "the Act")read with Rule 33 of Uttar Pradesh Zila Panchayats (Election of Adhyaksha and Up-Adhyaksha and Settlement of Election Disputes) Rules. 1994 (hereinafter described as the "rules") against the election of Jivendra Kumar (appellant in First Appeal No. 428 of 1996) declaring him elected as Adhyaksha. Zila Panchayat, Shahjahanpur by the Returning Officer. They claimed themselves to be the electors and member of Zila Panchayat Shahjahanpur. The main averments made in the election petition were that in accordance with the notification issued by U. P. Government followed by a notification issued by the District Returning Officer/district Magistrate, the date for nomination was fixed 16. 5. 1995 and for polling and counting of votes 22. 5. 1995. The candidates who contested the election were Jivendra Kumar. Manvendra and Shrimati Gayetri verma. The election was held as per schedule and counting of votes started at about 2. 00 p. m. on the same date. There were 31 electors/voters in all and all the 31 voters polled their votes. During the first counting, the candidates got the following number of first preference votes :
I. Jivendra Kumar 10 ii. Manvendra 14 iii. Smt. Gayetri Verma 7
According to Rule 26 of the rules and para 6 of Schedule II, which gives the Formula for determination of results, the quota was fixed as 16 votes but as no candidate could achieve first preference votes equivalent to the quota prescribed, Shrimati Gayetri Verma who had secured lowest number of first preference votes (only 7 votes) was eliminated and the Returning Officer then was to consider second preference votes in favour of remaining two candidates. The second preference votes secured by the remaining two contesting candidates were as follows : i. Jivendra Kumar 5 ii. Manvendra 1 the remaining electors did not exercise their second preference vote. After elimination of shrimati Gayetri Verma at the end of the second counting votes, the position of each candidate remained as under : i. Jivendra Kumar 10 + 5 = 15 ii. Manvendra 14 + 1 = 15 thus both the candidates secured equal votes as a result of which the Returning Officer decided to draw a lottery and even on the basis of the lottery Jivendra Kumar was declared elected. However, protest and objection was raised by Manvendra. The following prayer was made in the election petition:" (a) declare the election of Shri Jivendra Kumar, respondent No. 1 as null and void. (b) declare that respondent No. 2 Shri Manvendra has been duly elected as Adhyaksha of Zila panchayat. Shahjahanpur. (c) issue any other order granting any other relief which Court may deem just and proper in the nature and circumstances of the case. (d) award cost of the petition. "
Written statements were filed by Manvendra, Jivendra Kumar and Shrimati Gayetri Verma separately. In the written statement filed by Jivendra Kumar, it was stated that the lottery was drawn after the written consent of respondent No. 2 and his Agent Sri Ram Autar Misra and the then M. L. A. and respondent Manvendra filed a writ petition in this Court which was dismissed on 6. 2. 1996, on the ground that he should first file an election petition. In the written statement, manvendra has stated that the candidate who had secured the maximum number of first prefer
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