TIKAM SINGH Vs. STATE OF U P

JUDGEMENT

(1.) Heard Sri Vijendra Singh, learned Counsel for the Petitioner, Sri M.C. Chaturvedi, Chief Standing Counsel, for the State-Respondents and Sri C.K. Parekh learned Counsel appearing for Respondent No. 4.

(2.) The Petitioner as well as Respondent No. 4 contested the election of Pramukh of Kshetra Panchayat, Fatehpur Sikri held on 22nd of December, 2010. The counting of votes took place on 22nd of December, 2010. In the counting both the candidates received 33 votes each. The Returning Officer, after informing both the candidates that result of the election shall be declared by draw of lot, asked a minor girl of five years to take out one slip out of two containing name of the candidates. It was also informed that the name slip of the candidate which shall remain in the box after the draw of lot shall be declared elected. The names of both the candidates (Petitioner and Respondent No. 4) were written down on two slips and the minor girl took out one of the slips which contained the name of Tikam Singh (Petitioner). The Assistant Returning Officer declared Respondent No. 4 as elected and issued declaration in Form-VIII in her favour. The Petitioner has filed an election petition being Election Petition No. 34 of 2011 before the District Judge, Agra challenging the election of Respondent No. 4 which is said to be pending. The Petitioner has come up in this writ petition under Article 226 of the Constitution of India praying for the following relief:

(3.) Sri Vijendra Singh, learned Counsel for the Petitioner, has submitted that by this writ petition, the Petitioner is challenging Instruction 4(1)(b) of Schedule II of the U.P. Kshettra Panchayat (Election of Pramukhs and Up-Pramukhs and Settlement of Election Disputes) Rules, 1994 (hereinafter referred to as the 1994 Rules) being violative of Article 14 and Part-IX of the Constitution of India and also violative of Section 264-B of the U.P. Kshettra Panchayats and Zila Panchayats Act, 1961 (hereinafter referred to as the 1961 Act). He submits that in several statutes framed for conduct of election including Section 65 of the Representation of People Act, 1951, Rule 54 of the U.P. Panchayat Raj (Election of Members, Pradhans and Up-Pradhans) Rules, 1994 and Rule 55 of the U.P. Kshettra Panchayats and Zila Panchayats (Election of Members) Rules, 1994 whenever a lot is to be drawn the person whose name is taken out is treated to have received an additional vote and is declared elected. He submits that provisions of Schedule II, Instruction 4(1)(b) being contrary to the general rule of lottery system, are unreasonable and are liable to be struck down. He submits that Article 14 of the Constitution of India enjoins the Legislature to frame law which shall apply equally to all persons and Instruction 4(1)(b) being discriminatory is liable to be struck down. Strong reliance has been placed on the judgment of the Madras High Court in the case of S.P. Shanmughasundaram v. Marudachala Goundar and Ors., 1963 1 MadLJ 291. The Petitioner, for the proposition that the 1994 Rules violates Article 14 of the Constitution of India which enjoins the State not to deny any person equality before law, has placed reliance on the cases of Shrikishan v. State of Rajasthan, 1955 2 SCR 531, Chiranjeet Lal v. Union of India, 1950 SCR 869, Ramana v. International Airport Authority, 1979 AIR(SC) 1628, Kasturi v. Jammu and Kashmir, 1980 AIR(SC) 1992, Ameeroonissa v. Mehbood, 1953 SCR 404, Babu Lal v. Collector of Custom, 1957 AIR(SC) 877 and Gopichand v. Delhi Administration, 1959 AIR(SC) 609.