ALKA Vs. STATE OF U P

JUDGEMENT

(1.) THE dispute in this writ petition relates to the election for the post of Gram Pradhan of Gram Panchayat Habibpur Nagla, Vikas Khand Pilana, District Baghpat. The notification for such election was issued by the District Magistrate/Zila Nirvachan Adhikari, Baghpat, according to which nominations were to be filed between 5th and 7th August, 2005; scrutiny of the nomination papers was to be done from 7th to 9th August; withdrawal of nomination was to be made on 10th and 11th August; and on 11th August, 2005 symbols were to be allotted to the contesting candidates. The election was thereafter to be held on 23rd August, 2005 and the counting of votes was to be done on 28th August, 2005. The said election was for 'unreserved female' seat. The petitioner as well as respondents No. 5 and 6 had filed their nomination papers. On scrutiny of the nomination papers, on 9 -8 -2005, the nomination papers of respondents No. 5 and 6 were rejected on the ground that both of them were in arrears of taxes of Zila Panchayat. A complaint regarding the same was made by the respondents No. 5 and 6 on 10 -8 -2005, which was supported by a No Dues Certificate  issued by the Zila Panchayat. The District Magistrate/Zila Nirvachan Adhikari, Baghpat, respondent No. 3, instituted an enquiry, which was conducted by the Additional District Magistrate. After receiving the report of the Taxing Officer of the Zila Panchayat, the enquiry officer confirmed that the respondents No. 5 and 6 were in arrears of taxes of Zila Panchayat. The enquiry officer submitted the enquiry report on 11 -8 -2005. Such being the situation after enquiry, since the nomination papers of respondents No. 5 and 6 had already been rejected on 9 -8 -2005 and the date for withdrawal had also expired on 11 -8 -2005, leaving the petitioner as the lone candidate in the fray for election, the Nirvachan Adhikari, in accordance with the provisions of the U.P. Panchayat Raj (Election of Members, Pradhan and Up -pradhan) Rules, 1994 (for short 'the Rules') declared the petitioner as elected and as required under the Rules, reported the same to the District Magistrate. The District Magistrate thereafter informed the result of the election for the post of Pradhan of Gram Panchayat Pilana to the State Election Commission, respondent No. 2.

(2.) EXERCISING powers under Section 12 -BB of the U.P. Panchayat Raj Act, 1947 (for short 'the Act') the State Election Commission, vide its order dated 15 -8 -2005, cancelled the election of Pradhan for the Gram Panchayat in question. Aggrieved by the aforesaid order of the State Election Commission, the petitioner has filed this writ petition. Since there was an apprehension that election would be again held by the State Election Commission for the said post of Pradhan, a further prayer has been made for a direction to the respondents not to take steps for holding fresh elections. As an interim order had been granted at the initial stage, no fresh elections have yet been held.

(3.) SRI D.K. Srivastava, learned Counsel for the petitioner, has submitted that prior to the passing of the order dated 15 -8 -2005, no show -cause notice or opportunity of hearing was provided to the petitioner by the State Election Commission, and that the impugned order is an ex parte order, based on an ex parte enquiry. It has further been submitted that the clerk of the Zila Panchayat, Baghpat, who had issued the 'No Dues Certificate' in favour of the petitioner subsequently, which formed basis of the passing of the impugned order, was given a notice by the Zila Panchayat and had also been placed under suspension on the ground of having issued a forged 'No Dues Certificate'. The contention is that the enquiry, which was got conducted subsequent to the rejection of the nomination papers, was not an enquiry within the scope of the Rules of 1994. The enquiry officer was not connected with the election for the post of Pradhan and as such the State Election Commission could not have relied on such enquiry report. The contention of the learned Counsel for the petitioner, thus, is that once the election results have been declared under the Rules of 1994, the State Election Commission becomes functus officio and was not empowered to cancel the election proceedings, as has been done by the impugned order dated 15 -8 -2005. It has been urged that after the declaration of the result of the election, the only alternative open to the respondent Nos. 5 and 6 was to file an election petition, as the State Election Commission had lost the jurisdiction and competence to cancel the election process. In support of this submission, Sri Srivastava has placed reliance on two Division Bench decisions of this Court rendered in the cases of Shambhu Singh v. State Election Commissioner, 2000 (91) Revenue Decisions 619 and Smt. Ram Kanti v. District Magistrate, Hamirpur, (1995) 2 UPLBEC 771.