1. Heard learned counsel for the petitioner, learned Advocate who appeared for the Election Commission and learned Standing Counsel.
2. Prayer in this petition is for quashing the final result sheet Part 2 dated 14.11.2010 in respect to Block Sahawar and Ganj Dundawara of 5 Territorial Constituency of Zila Panchayat Kanshiram Nagar.
3. There is a further prayer that result sheet issued by the returning officer be not given effect and the State Election Commission and District Collector be directed to prepare a fresh, proper and correct tabulation chart on the basis of proper and correct counting of votes received at returning officer's table and then to issue correct final result sheet.
4. Submission of the learned counsel for the petitioner is that as no grounds are provided in the U.P. Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 and U.P. Zila Panchayat (Settlement of Disputes relating to Membership) Rules, 1994 hereinafter referred as the Act/Rules to challenge the election of an elected member of Zila Panchayat, the election petition for the purpose may not be entertainable.
5. It was then submitted that in the light of the facts and the details as has been brought on record as this court is not to resolve any factual dispute petitioner is not to be relegated for the alternative remedy of filing election petition.
6. In support of the aforesaid submission reliance has been placed on the decision given in the case of Lal Chand v. State of Haryana and others reported in AIR 1999 Punjab and Haryana, 1.
7. Sri Upadhyaha, learned Additional Chief Standing Counsel submits that if in the Adhiniyam to challenge the election of a member of Zila Panchayat a forum has been provided and in the Rules manner of raising the dispute and the form etc. is also provided, it is wrong to argue that on account of non mention of the grounds like Panchayat Raj Act and the Representative of People Act Election petition will not be entertainable.
8. It is further submitted that if no ground is mentioned to file an election petition then it is in more wide terms and grounds not being restricted on any ground whatsoever on the facts and law as may be permissible election petition can be filed.
9. Submission is that various questions, details and datas so stated/filed before this court and is being argued needs resolution of the factual issue which being not permissible in the writ jurisdiction straight way specially when alternative effective remedy is provided, writ petition is not to be entertained on merits.
10. There is no dispute about the fact that to raise the dispute as to membership or disqualification in the U.P. Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 Section 27 is available which states that dispute as to whether a person has been lawfully chosen a member of Zila Panchayat or not if is raised is to be referred for being decided in the manner so prescribed.
11. Section 27 of the U.P. Kshettra Panchayat and Zila Panchayat Adhiniyam is hereby quoted for convenience-
27.Disputes as to membership or disqualification. (I) if any dispute arises as to whether a particular person is a member of Zila Panchayat under clause (a) of Section 18 the dispute shall be referred in the manner prescribed to the State Government and the decision of the State Government shall be final and binding.
(2) If a dispute arises as to whether a person-
(a) has been lawfully chosen a member of a Zila Panchayat under Section 18 or
(b) has ceased to remain eligible for being chosen a member of the Zila Panchayat for the purposes of Section 20 or
(C) has become disqualified to be Adhyaksha or Upadhyaksha for the purposes of Section 19, the dispute shall be referred in the manner prescribed to the Judge whose decision shall be final and binding.
12. There is Rule also in this respect which is called as U.P. Zila Panchayat (Settlement of Disputes relating to Membership) Rules, 1994 in which manner of raising dispute, form of the petition and relief which may be claimed by the petition has been provided.
Rule 4, 5 and 6 of the U.P. Zila Panchayat (Settlement of Disputes relating to Membership) Rules, 1994 are being quoted for convenience-.
Rule 4. Manner of raising disputes under Section 27(2)(a) and (b)-
(1) If a dispute arises as to whether a person has been lawfully chosen under clause (b) of of sub-Section (1) of Section 18 the matter shall be referred by means of a written petition by any person who could legally be a candidate at such choosing to the Judge within thirty days of the date of choosing.
(2) If a dispute arises as to whether a person has ceased to remain eligible for being chosen a member, the matter shall in the manner as provided in sub-rule (1) be raised by any person whose name is registered as an elector in the Electoral roll for the territorial constituency of the concerned Zila Panchayat.
(3) Every petition under sub-rule (1) or sub-rule (2) shall be presented in person by the petitioner, and if there are more than one petitioners by any or all of them.
Rule 5. Form, etc. of petition- (1) A petition presented under Rule 4 shall state the grounds on which the member of the Zila Panchayat is alleged to have been wrongly chosen or is alleged to have ceased to remain eligible to be a member.
(2) A person whose membership is questioned under Rule 4 shall be made a respondent to the petition.
(3) Where a relief under clause (b) of Rule 6 is claimed, every unsuccessful candidate shall be made respondent to the petition.
Rule 6. Relief that may be claimed by the petitioner- A petitioner may claim any or all of the following reliefs-
(a) that the choosing of a person as member of the Zila Panchayat is void, or that the member concerned has ceased to remain eligible for such membership; and
(b) that the choosing of a person as a member is void and that he himself or any other candidate has been duly chosen. (Emphasis supplied by us )
13. A bare reading of the aforesaid rules makes it clear that the petition presented under Rule 4 shall state the grounds on which member of Zila Panchayat is alleged to have been wrongly chosen and Rule 6 states that petition may claim the relief that choosing a person as member Zila Panchayat is void.
14. Bare reading of the provision as contained in the Adhiniyam/Rules makes no room for doubt that election of a person as member Zila Panchayat who is said to be not lawfully chosen can be challenged by petition by stating the ground for declaring the choosing of a person as void.
15. The election of an elected candidate can be said to be illegal/void on various grounds i.e. on improper acceptance/rejection of the nomination, using of any illegal means for getting the votes and wrong counting/adding of the votes or other grounds of alike nature which may make the election or choosing of a person as member of Zila Panchayat as void but to accept the aforesaid there has to be a foundation, then the evidence (oral and documentary) and then a finding.
16. There may be hardly a situation where the facts as alleged in a petition are not disputed one so as to argue that election is void on the admitted facts and thus the relegation to the remedy as provided in the Adhiniyam/Rules is not to be resorted.
17. It goes without saying that an act is to be performed in the manner so provided in a particular Act/Rules, of course there may not be a rider on exercise of the powers on this court under Article 226/227 of the Constitution of India but it will not be proper for this court first to go into all the issues/aspects by going into the merits then calling the respondent to file counter affidavit and then to ascertain that which case is triable and entertainable straight way by this court and in which case the petitioner is to be asked to avail the remedy of filing the petition as noted above.
18. The aforesaid observation finds support from the decision given in case of Ram Chandra v. Govind reported in AIR 1975 SC, 915 in which decision of the famous case Taylor v. Taylor (1875) 1 Ch D 426 was referred.
19. Dealing with the dispute under Kshettra Panchayat Adhiniyam/Rules the Bench of our Court in case of Ram Kishun, Gorakhpur v. State Election Commissioner and others reported in 2003 (3) AWC 2271 made the following observation-
"9. It is well settled principle of law that where a statute provides to do certain things in a certain manner, it has to be and must be done in that manner and if any other method is adopted, the object and purpose of the provision is defeated and failure to comply with those provisions vitiates the order. Reference may be made to a judgment of the Apex Court in the case of Ram Chandra v. Govind, AIR 1975 SC 915, wherein the Hon'ble Supreme Court relying on Taylor v. Taylor (1875) 1 Ch D 426, observed that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden.
16. In view of the settled legal position, the election commences from issuance of the notification of the election and culminates in the declaration of the returned candidate and thereafter the State Election Commission, the District Magistrate and the Election Officer becomes functus officio and cease to have any jurisdiction over that election and only authority which can deal with and decide a complaint regarding the illegality or irregularity of the election is the Election Tribunal."
20. There may be a situation where there can be inherent lacuna or disqualification to contest or any similar thing so apparent that this court with reluctance may look into but in a case and specially in the given set of facts, if we just have a look to the ground so taken in the writ petition we become sure that the charge is about irregularity in issuance of the ballot papers, permission to caste votes by the dead person, fault in the tabulation sheet/chart, some change in the final result in respect to certain blocks etc. and thus it all relates to the pure question of fact.
So far decision given in case of Lal Chand (Supra) on which reliance has been placed by the learned counsel for the petitioner , suffice it to say that before the Punjab and Haryana High Court also similar was the situation for which submission of the learned counsel for the petition was, that no ground to challenge the election is mentioned in the Haryana Act or the Rules on which the election of the elected candidate can be challenged before the High Court.
21.This argument was over-ruled and the Bench observed that even if ground of challenge is not mentioned it is not correct to argue that High Court must entertain writ petition and in the given set of facts the High Court may relegate petitioner to avail remedy under the Act but there cannot be any complete bar to oust the jurisdiction of the High Court under Article 226/227 of the Constitution of India.
22. In respect to powers of the judicial review under Article 226/227 of the Constitution of India the Bench referred to the decision given by the Apex Court in case of L. Chandra Kumar (AIR 1997 SC, 1125) and observation about powers of the High Court was made in para 33 of the judgment which is to be quoted here-
"33. Since the power of judicial review under Arts. 226/227 of the Constitution has been held by the Apex Court as an essential feature of the Constitution which can neither be tinkered with nor eroded, we are of the opinion that the words "Notwithstanding anything in this constitution" will have to be read down to mean as "Notwithstanding anything in this Constitution subject, however, to Arts. 226/227 of the Constitution". In view of this, clause (b) of Art. 243-O and Clause (b) of Art. 243-ZG will be read to mean as follows "No election to any Panchayat/Municipality 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 to a State but this will not oust the jurisdiction of the High Court under Arts. 226/227 of the Constitution."
23. In the decision given in case of Lal Chand (Supra) on which reliance has been placed two questions were referred-
i)About effect of Article 243-O , 243-ZG of the Constitution of India on the powers of judicial review under Article 226 of the Constitution.
ii)Grounds on which election of the returned candidate of a Gram Panchayat/Zila Panchayat can be challenged under Haryana Panchayat Raj Act and relevant Rules.
24. After answering 1st question about the scope of judicial review by the High Court, so far second question pertaining to ground on which election of the returning candidate can be challenged observation was made that it can be challenged under Haryana Act/Rules.
25. The observation in this respect as is contained in the judgment noted is to be quoted for convenience-
"The second question pertaining to grounds on which an election of a returned candidate to Gram Panchayat/Zila Parishad can be challenged under the Haryana Act and Haryana Rules, already stands answered in the Full Bench judgment of this Court in the case of Smt. Anju v. Addl. Civil Judge (Sr. Division Pehowa)."
26. We may refer to another decision given by the Bench of our Court dealing with the dispute of election under present Adhiniyam given in case of Smt. Tara Devi v. The State of U.P. And others (writ petition No. 66182 of 2010.
27. Large number of decisions of the Apex Court on variety of aspects have been noted in the decision, referred above.
28. Some of the observations made in case of Smt. Tara Devi (Supra) are to be quoted here-
"Mr. Ojha has relied upon various judgements of this Court to establish that there is no embargo upon the writ Court in interfering with such type of disputes. According to us, normal practice is that from the date of commencement of election by way of issuance of notification and till the date of de-notification the election cases will not be interfered with by the Court, meaning thereby if any dispute arises out of the election, the same can be decided by way of election petition when the election is over. So far as the writ Court is concerned, though there is no embargo in interfering with any matter but the writ Court in its wisdom maintains the restraint, so that the necessity of franchise should not be disturbed during such period. There is a gulf difference between not having power and having power to maintain its restraint. All the cited Division Bench judgments of this Court have principally held that there is no absolute bar to the writ Court. We have no quarrel with the proposition but, according to us, each case is dependent upon factual matrix of such case. Therefore, if a case of such nature is required to be heard by way of election petition, the entire dispute will be resolved in such manner. Alternatively, if the writ Court finds that the dispute is not an election dispute but due to administrative lapse amenable under writ jurisdiction then the entire matter will be adjudicated by the writ Court. No half hearted action would be permissible to construe one action as an administrative lapse and the other as an election dispute, particularly when the provisions of Article 243-O of the Constitution is crystal clear that no election to any Panchayats 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."
29. In view of the aforesaid discussion, we are of the considered view that although the jurisdiction conferred to this Court under Article 226/227 of the Constitution is a part of basic structure of our Constitution and that cannot be ousted but at the same time it will not be correct to argue that High Court must entertain a writ petition although the questions of fact are involved and it is to be resolved by recording a finding which may lead to taking/entertaining the evidence which might be only in the shape of documentary evidence.
30. On the facts, we are not satisfied that this is a case where petitioner is to be permitted to bye pass remedy of filing Election petition as provided under Section 27 of U.P. Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 and in the manner so provided under U.P. Zila Panchayat (Settlement of Disputes relating to Membership) Rules, 1994 and thus we are to relegate petitioner to take recourse of the alternative redressal forum as noticed, if the petitioner is so advised.
31. For the reasons given above, we are not inclined to issue the writ, as prayed.
Writ petition fails and it is dismissed.