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2019 Supreme(All) 2694
IN THE HIGH COURT OF ALLAHABAD
RAJAN ROY, J.
Rajesh Kumar Pandey - Petitioner
Versus
State of U.P., Thru. Prin. Secy. Panchayat Raj Lko & Others - Respondents
Misc. Single No. 279 of 2016
Decided On : 17-12-2019
For the Petitioner: Shashank Shekhar Parehar, Meenakshi Singh Parihar, Rajnish Ojha.
For the Respondent: C.S.C, Mohammad Aslam Khan, Rakesh Kumar Chaudhary, Sharad Nandan Ojha.
Point of Law: State Government is directed to consider making provision in the Rules to facilitate determination of the term "ordinarily resident" as occurring in sub-section (3) and section 9 of the Act 1947 so as to avoid further disputes and litigation in the matter.
Headnote:
U.P. Panchayat Raj Act 1947 –Sections 2(h), 11-F, 67 –Issue on including name illegally in Elections - Impugned orders are hereby quashed. The matter is remanded back to the opposite party no.4 for a consideration afresh and decision thereon accordingly keeping in mind the observations made hereinabove.
Facts of the case: Senior Counsel appearing for the petitioner, in nutshell, was that the opposite party no. 5 was not ordinarily resident of village and he came to reside there barely a couple of days prior to the notification of the elections on and his name was incorrectly and illegally included in the electoral list for elections to newly formed Nyay Panchayat Ramgarh Raila –It was his submission that this could not be a ground for challenging the election of opposite party no. 5 as is the settled legal position, therefore, this Court alone has jurisdiction to exercise extraordinary jurisdiction to ascertain the validity of the impugned order –He prays that the impugned order be quashed as the name of the opposite party no. 5 has been wrongly included in the electoral roll
Finding of the court: As the Authorities have not applied their mind to relevant aspects of the matter and have passed the order cursorily, therefore, there is no occasion for this Court to delve into these factual issues and record its own conclusions which may involve findings of facts, instead, it is for the Authorities to reconsider the matter in the light of what has been stated hereinabove –In fact this Court finds that the order of the Sub Divisional Magistrate is apparently contradictory for various reasons which are borne out from bare reading of the order –It is made clear that this Court has not recorded any conclusive opinion with regard to any issue on merits of the matter regarding inclusion or exclusion of the opposite party no.5's name from the electoral rolls of the Gram Panchayat Ramgarh Raila, which shall be done by the official opposite parties, meaning thereby it shall be open for the concerned opposite party to decide the issues in accordance with law as aforesaid
Result: Writ Petition disposed off
JUDGMENT :
1. Heard learned counsel for the petitioner, learned Addl. C.S.C. as also Sri Rakesh Chaudhary, Advocate appearing for the opposite party no.6.
2. This is a writ petition under Article 226 of the Constitution of India challenging an order dated 10.11.2015 passed by the Sub Divisional Magistrate / Assistant Electoral Registration Officer (Panchayat), Lalganj, Pratapgarh, as well as another order dated 20.11.2015 passed by the Additional Collector / Electoral Registration Officer (Panchayat), Pratapgarh.
3. Contention of Shri Parihar, Learned Senior Counsel appearing for the petitioner, in nutshell, was that the opposite party no. 5 was not ordinarily resident of village Ramgarh Raila and he came to reside there only on 27.10.2015, barely a couple of days prior to the notification of the elections on 06.11.2015, and his name was incorrectly and illegally included in the electoral list for elections to newly formed Nyay Panchayat Ramgarh Raila. It was his submission that this could not be a ground for challenging the election of opposite party no. 5 as is the settled legal position, therefore, this Court alone has jurisdiction to exercise extraordinary jurisdiction to ascertain the validity of the impugned order. He prays that the impugned order be quashed as the name of the opposite party no. 5 has been wrongly included in the electoral roll.
4. On the other hand Shri M.A. Khan, learned Senior Counsel appearing for the opposite party no. 5 has invited attention of the Court to various documents filed by him along with the counter affidavit to demonstrate that though the opposite party no. 5 was originally the resident of Gram Panchayat known as Gram Panchayat Sarai Lohangrai (Kathwad), he had shifted to village Lalupur which was the part of then Gram Panchayat Ramgarh Raila in 1990 and subsequently in March 2015 consequent to the bifurcation and Delimitation of Gram Panchayat when a new Gram Panchayat by the same name Ramgarh Raila was formed, he moved an application in March 2015 or thereafter for deletion of his name from the electoral roll pertaining to village Lalupur which alongwith village Matha had been formed into a new Gram Panchayat and for including his name in the pre-constituted Gram Panchayat Ramgarh Raila, accordingly his name was included in the electoral roll of the said Gram Panchayat. It was also his contention that in fact he had a house in Padkiya which is a Hamlet of Ramgarh Raila and had been residing therein for the past 8 to 10 years.
5. This assertion was challenged by Shri Parihar by saying that by the impugned orders the names of all the family members had been ordered to be struck off from the electoral roll pertaining to reconstituted Gram Panchayat Ramgarh Raila on the ground that they were residents of Gram Panchayat kathwad, therefore, he said it was indeed surprising that all the family members including the wife of the opposite party no. 5 their names had been retained in the electoral roll of Gram Panchayat Kathwad, the name of opposite party no. 5 has been allowed to be retained in the reconstituted Ramgarh Raila and has been ordered to be deleted from village Lalupur which now is a separate Gram Panchayat.
6. A pointed query was put to Shri J.P. Maurya, learned Additional CSC, as to when did the opposite party No. 5 apply for deletion of his name from the electoral roll pertaining to the Gram Panchayat, of which, village Lalupur was a part and for inclusion of his name in the reconstituted Gram Panchayat Ramgarh Raila, he pointed out that original records which were available did not contain this information.
7. Shri Khan, Learned Senior Counsel was also asked in this regard, but he also said that he did not have relevant information and document in this regard.
8. The original records reveal a report of the Revenue Inspector which, inter alia, says that the opposite party no. 5 had come to reside in the newly reconstituted Ramgarh Raila on 27.10.2015, however, it is not known on what bas
