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2020 Supreme(UK) 235

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Manoj K Tiwari, J.
Bhupendra Singh - Appellant
Versus
State Of Uttarakhand And Others - Respondent
Writ Petition No. 3350 of 2019, 2693 of 2019, 2767 of 2019, 2890 of 2019, 2950 of 2019, 2951 of 2019, 2962 of 2019, 3026 of 2019, 3078 of 2019, 3369 of 2019, 3383 of 2019, 3390 of 2019, 3401 of 2019, 3412 of 2019, 3417 of 2019, 3420 of 2019, 3435 of 2019, 3448 of 2019, 3455 of 2019, 3461 of 2019, 3471 of 2019, 3497 of 2019, 3504 of 2019, 3518 of 2019, 3525 of 2019, 3529 of 2019, 3538 of 2019, 3543 of 2019, 3546 of 2019, 3558 of 2019, 3561 of 2019, 3567 of 2019, 3569 of 2019, 3577 of 2019, 3580 of 2019, 3581 of 2019, 3593 of 2019, 3630 of 2019, 3637 of 2019, 3638 of 2019, 3639 of 2019, 3640 of 2019, 3664 of 2019, 3689 of 2019, 3694 of 2019, 3698 of 2019, 3734 of 2019, 3756 of 2019, 3760 of 2019, 3761 of 2019
Decided On : 19-08-2020

Advocates Appeared:
T.A. Khan, Advocate, V.B.S. Negi, Advocate, Vinay Bhatt, Advocate, B.S. Negi, Advocate, Aditya Singh, Advocate, Jitendra Chaudhary, Advocate, D.K. Joshi, Advocate, Ramji Srivastava, Advocate, Sagar Kothari, Advocate, K.H. Gupta, Advocate, B.S. Adhikari, Advocate, Amit Kapri, Advocate, C.K. Sharma, Advocate, T.P.S. Takuli, Advocate, Shujeet Kumar Shah, Advocate, Sandeep Kothari, Advocate, Priyanshu Gairola, Advocate, Prabha Naithani, Advocate, Prabhakar Joshi, Advocate, Nagesh Agarwal, Advocate, I.D. Paliwal, Advocate, Pankaj Purohit, Advocate, Anil Dabral, Advocate, Anil Kumar Joshi, Advocate, Mehboob Rahi, Advocate, Yogesh Pacholia, Advocate, M.C. Pandey, Advocate, Narain Dutt, Advocate, Suyash Pant, Advocate, K.K. Tiwari, Advocate, Ravindra Singh Bisht, Advocate, Prabhakar Narayan, Advocate, V.K. Kaparuwan, Advocate, Lokendra Dobhal, Advocate, Ganesh Kandpal, Advocate, Vikas Bahuguna, Advocate, Akshay Latwal, Advocate, Vikas Kumar Guglani, Advocate, Ajay Singh Bisht, Advocate, Sanjay Bhatt, Advocate

The main legal point established in the judgment is the provision of a forum for raising election disputes and the applicability of Rules framed by the State of Uttar Pradesh in the State of Uttarakhand under the Uttarakhand Panchayati Raj Act.

Headnote:
Panchayat - Validity of Election - Article 243, Section 2 (16) of Uttarakhand Panchayati Raj Act, 2016 - The judgment discusses the validity of the election of Members or Office Bearers of the Panchayats at the Village, Intermediate & District Levels. It refers to the definitions of 'Panchayat' under Article 243 (d) of the Constitution of India and Section 2 (16) of Uttarakhand Panchayati Raj Act, 2016, as amended by Act No.18 of 2020. The court highlights the provisions of Article 243-O of the Constitution of India and the amendments made in the Uttarakhand Panchayati Raj Act, providing the forum for raising election disputes. The judgment emphasizes the Competent Authority to hear the election disputes and the revised definition of 'Rules' under the Act, making all the Rules framed by the State of Uttar Pradesh applicable in the State of Uttarakhand.
Fact of the Case:

The petitions questioned the validity of the election of certain Members or Office Bearers of the Panchayats at the Village, Intermediate & District Levels. The court considered the ambiguity in the relevant Statute regarding the Forum before whom Election Petition would be maintainable and entertained the writ petitions. The primary reason for entertaining the writ petitions was the absence of a notification under the Uttarakhand Panchayati Raj Act, 2016 regarding the appointment/nomination of an Authority to hear the election disputes.
Finding of the Court:

The court found that suitable amendments had been made in the Uttarakhand Panchayati Raj Act for providing the forum for raising election disputes. It provided directions for raising an election dispute by presenting a Written Petition within three weeks, ensuring that the same would be heard and decided on merits without going into the question of limitation.
Issues: The issues revolved around the validity of the election of Members or Office Bearers of the Panchayats at different levels and the ambiguity in the relevant Statute regarding the Forum before whom Election Petition would be maintainable.
Ratio Decidendi: The key legal principle established in the judgment is the provision of a forum for raising election disputes and the revised definition of 'Rules' under the Uttarakhand Panchayati Raj Act, making all the Rules framed by the State of Uttar Pradesh applicable in the State of Uttarakhand.
Final Decision: The writ petitions were disposed of with directions for raising an election dispute by presenting a Written Petition within three weeks, ensuring that the same would be heard and decided on merits without going into the question of limitation.

JUDGMENT

Manoj K. Tiwari, J. - Since common questions of fact and law are involved in these petitions, therefore all these petitions are clubbed together and are being heard & decided together. However, for the sake of convenience, facts of WPMS No. 3350 of 2019 are being considered.

2. In all these writ petitions, petitioners have questioned validity of election of certain Members or Office Bearers of the Panchayats at the Village, Intermediate & District Levels.

3. The expression "Panchayat" has been defined under Article 243 (d) of Constitution of India, which is extracted below:

"243. (d) "Panchayat" means an institution (by whatever name called) of self-government constituted under article 243B, for the rural areas;"

4. Section 2 (16) of Uttarakhand Panchayati Raj Act, 2016, as amended by Act No.18 of 2020, defines expression "Panchayat" as follows:

"2(16) "Panchayat" means Gram Panchayat, Kshetra Panchayat and Zila Panchayat respectively in relation to Part II, Part III and Part IV under this Act;"

5. Reliefs sought in Writ Petition (M/S) No. 3350 of 2019 are extracted below:

"(i) Issue a writ, order or direction, in the nature of certiorari quashing the election result declared by respondent no. 3 for the seat "14- Haripur Jaman Singh" in Haldwani Block of District Nainital, contained as Annexure no. 4 to the writ petition.

(ii) Issue a writ, order or direction, in the nature of mandamus commanding the respondents to hold fresh elections for the seat "14-Haripur Jaman Singh" in Haldwani Block of District Nainital."

6. In view of reliefs sought in these writ petitions, provision contained in Article 243-O of Constitution of India is attracted. Article 243-O is extracted below:

"243-O. Bar to interference by courts in electoral matters.

Notwithstanding anything in this Constitution,-

(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 243K, shall not be called in question in any court;

(b) no election to any Panchayat 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."

7. At the time when these writ petitions were filed, a Co-ordinate Bench of this Court considered the question of maintainability of the writ petitions questioning the validity of an election of an individual. However, having regard to some ambiguity in the relevant Statute regarding the Forum before whom Election Petition would be maintainable, these writ petitions were entertained by a detailed order dated 16.11.2019 passed in Writ Petition (M/S) No. 3350 of 2019 and other connected petitions.

8. Learned counsel for the petitioners have informed the Court that the said order was challenged before the Division Bench of this Court in Special Appeal, however, the said Special Appeal was dismissed.

9. One of the primary reasons of entertaining these writ petitions was that there was no notification under the Uttarakhand Panchayati Raj Act, 2016 regarding appointment/nomination of an Authority, as Prescribed Authority, who may hear the election disputes.

10. The Uttarakhand Panchayati Raj Act, 2016 was last amended vide Act No. 18 of 2020 and the said amendment was notified on 10.06.2020. By the said amendment, inter alia, a new Section, numbered as 131- H (1) was inserted, which reads as under:

"l31(H) (l) The election of a person as Pradhan or UpPradhan or as member of Gram Panchayat shall not be called in question except by an application presented to such authority within such time and in such manner as may be prescribed, on the ground:-

(a) that this election has not been free election by reason that the corrupt practice of bribery or undue influence has extensively prevailed at the election or

(b) that the result of the election has been materially affected-

(i) by the acceptance or rejection of any nomination in

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