SHYAM DULARI Vs. STATE OF U P

JUDGEMENT

(1.) Smt. Shyam Dulari Devi who was one of the candidate for the post of Pradhan for Gram Panchayat Bhatgawan has approached this Court substantively for following reliefs:

(2.) Brief facts of the case as mentioned in the writ petition is that Notification had been issued by the Chief Election Commissioner U. P. at Lucknow on 18-7-2005 regarding holding of Gram Panchayat Elections in the State of U.P. Polling of Gram Panchayat Bhatgawan, District Kushi Nagar was scheduled to take place on 20-8-2005. Petitioner and three other contestants contested for the office of Pradhan of Gram Panchayat Bhatgawan, District Kushi Nagar. It has been stated that village Bhatgawan is located on the extreme border of territorial limits of District Kushi Nagar, with adjoining District Gorakhpur and at a distance of three Kms. there is village known as Sonebarsa Khurd which falls in Tehsil Chauri Chaura, District Gorakhpur. It has further been contended that village Bhatgawan and village Sonebarsa Khurd are thus adjoining villages with common agriculture fields. Election for Gram Panchayat Sonebarsa Khurd, District Gorakhpur was held on 17-8-2005. It has been contended that family of respondent No. 7 Ram Samujh have got their names inserted in the voter lists of 2 or 3 Gram Panchayats simultaneously, namely at Gram Panchayat Bhatgawan, Gram Panchayat Sonebarsa Khurd and Gram Panchayat Ramu Diha. Petitioner has asserted that objections in this respect has been raised. It has been asserted that on 17-8-2005 the petitioner and many other persons openly saw (1) Jai Prakash son of Ram Bilas (2) Smt. Lilawati W/o Jai Prakash (3) Rajeshwar @ Bhola S/o Jai Prakash (4) Smt. Kusmawati @ Rita W/o Rajeshwar @ Bhola (5) Chhedi S/o Ram Bilas (6) Shakuntala W/o Chhedi (7) Chndrabhan S/o Ram Bilas (8) Smt. Kaushalya W/o of Chandra Bhan (9) Uma Shankar S/o Ram Bilas and (10) Smt. Vandana W/o Uma Shankar casting their votes in the election of Gram Panchayat Sonebarsa Khurd of District Gorakhpur. Petitioner has asserted that when all these persons had already cast their votes on 17-8-2005 then they were not at all entitled to cast their votes in election of Gram Panchayat Bhatgawan, District Gorakhpur, which was scheduled for 20-8-2005. In this background on 18-8-2005 application was moved before Election Officer/Sub-Divisional Magistrate Hata, District Kushi Nagar mentioning therein that all these persons have already exercised their right to cast vote in the election of Gram Panchayat Sonebarsa Khurd, District Gorakhpur on 17-8-2005, as such they should be refrained from casting their votes in the election dated 20-8-2005. Petitioner submits that in spite of complaint being made no action was taken on the same and in the election which was scheduled/fixed on 20-8-2005 all these persons whose names have been mentioned above participated in the election of Gram Panchayat Bhatgawan, District Kushinagar. After polling was over in the counting there is difference of only three votes and as such said election has been materially affected on account of participation of all these persons, which occasioned failure of justice qua the petitioner. It has been contended that on the basis of result declared oath is scheduled to be administered on 2-9-2005, as such this Hon'ble Court should come to the rescue of the petitioner.

(3.) Sri Sant Sharan Upadhyaya, Advocate, appearing on behalf of the petitioner submitted with vehemence that in the present case 10 persons, whose names have been referred to above, had already cast their votes in the election of Gram Panchayat Sonebarsa Khurd, District Gorakhpur on 17-8-2005 then in that event they were not entitled to cast their votes again in the election dated 20-8-2005 qua Gram Panchayat Bhatgawan, District Kushinagar and their participation is clearly in breach of sub-section (6) of Section 9 of the U. P. Panchayat Raj Act 1947 which clearly provide that no person shall be entitled to be registered in the electoral roll for more than one Gaon Sabha or more than once in the electoral roll for the same Gaon Sabha and as undisputed position is to the effect that these 10 persons have been enrolled as voters in both Gram Panchayats and have participated in both the elections, as such their participation on second occasion has materially affected the election, as such election of Respondent No. 7 Sri Ram Samujh is liable to be set aside and oath is not liable to be administered to him. In this connection he has placed reliance on paragraphs 3 & 4 of the judgment in the case of Sher Singh Budh Singh v. State of Punjab reported in AIR 1965 Punjab 361 for the proposition that if participation of persons is violative of statutory provision then the said election is no election in the eyes of law and result declared qua the same is illegal. Paragraphs 3 and 4 of the said judgment is quoted below: