Election disputes must be resolved through election petitions, not writs, to maintain electoral integrity.

Hon’ble Ravindra Maithani, J. (Oral)

By means of the instant petition, the petitioner seeks the following reliefs:-

(i) Issue a writ, order or direction in the nature of certiorari, calling for records, and quashing the votes casted in Polling Centre No.75, Junior High School, Datnu (Erstwhile Badnu), Block and Tehsil Kalsi, District Dehradun, at Polling Booth No.82, Junior High School, Datnu (Erstwhile Badnu), Block Tehsil, Kalsi, District Dehradun in the elections of Member of Kshetra Panchayat, Kshetra Joshi Gothan, Block and Tehsil Kalsi, District Dehradun.

(ii) Issue a writ, order or direction in the nature of mandamus directing an independent agency to conduct an independent inquiry against the erring officials involved in corrupt practice of getting fake votes casted in the elections of Kshetra Panchayat, Kshetra Joshi Gothan, Block and Tehsil, Kalsi, District Dehradun.

(iii) Issue any other suitable writ, order or direction of any nature in favour of petitioner, which this Hon’ble Court may deem fit and proper in the present circumstances of the case.

(iv) Award the cost of writ petition in favour of the petitioner.

2. Heard learned counsel for the parties and perused the record.

3. Learned counsel for the petitioner submits that the petitioner contested the election of Membership of Kshetra Panchayat from Kshetra Joshi Gothan, Block and Tehsil Kalsi, District Dehradun. During elections, fake votes were casted. In Para 7 of the petition, the petitioner claims that 38 votes were fake. Therefore, those votes may be quashed and a high level enquiry may be conducted.

4. Learned counsel for the respondent no.7 submits that the relief, which the petitioner seeks, may be sought by him by way of presenting an election petition under Section 131-H of the Uttarakhand Panchayati Raj Act, 2016 (“the Act”). At this stage, the petition may not be entertained because the election is almost over. Tomorrow is the day for counting of votes.

5. Learned counsel for the respondent no.1/State Election Commission submits that it is an election dispute. It requires a trial. It may not be decided in the writ petition in view of the bar created under Article 234-O of the Constitution of India andSection 131-Hof the Act.

6. Learned counsel for the petitioner also submits that some voters have also complained that they did not caste vote and some fake voters have casted their votes; the writ petition is maintainable.

7. Before proceeding further, it would be apt to reproduce the statutory provisions on the subject. Section 131-H of the Act reads as follows:-

“ (1) The election of a person, Chairman or as members of a Panchayat including the election of a person appointed as a Panch 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;

That this election has not been a free election by reason that the corrupt practice of bribery or undue influence has extensively prevailed at the election, …………………………………………………………………………………….. ……………………………………………………………………………………..

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

(i) by the improper acceptance or rejection of any nomination; or

(ii) by gross failure to comply with the provisions of this Act or the rules framed thereunder.”

8. There is another provision under Article 243-O of the Constitution of India, which reads as follows:-

“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 243-K, shall not be called in question in any court;

(b) no election to any Panchayat shall