Allahabad High Court
Munni Devi vs State Of U.P. And 6 Others on 26 May, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2026:AHC:120624
AFR Judgement Reserved On: 13.05.2026 Judgement Delivered On: 26.05.2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
WRIT - C No. - 34527 of 2023
Munni Devi
.....Petitioner(s)
Versus
State Of U.P. And 6 Others
.....Respondent(s)
Counsel for Petitioner(s)
:
Bal Mukund Singh, Bharat Singh Pal, Shivangi Tripathi, Shri Prakash Mishra
Counsel for Respondent(s)
:
Narendra Kumar Pandey, C.S.C, Nisheeth Yadav, Pardeep Kumar, Prakhar Saran Srivastava, Sanjay Kumar Yadav, Tarun Agrawal
Court No. - 5
HON'BLE VIKAS BUDHWAR, J.
1. Heard Sri K.R. Singh along with Sri Bharat Singh Pal, learned counsel for the petitioner, Sri Sanjay Kumar Singh, learned Addl. Chief Standing Counsel for the State, Sri Prakhar Saran Srivastava, learned counsel for the Election Commission and Shri N.K. Pandey, counsel for the respondent no. 6.
2. The counsel(s) for the rival parties have made a joint statement that they do not propose to file any further affidavits and the writ petition is being decided on the basis of the documents available on record, thus, with the consent of the parties, writ petition is being decided at the admission stage.
FACTS
3. The facts of the case as worded in the petition are that the State of Uttar Pradesh in exercise of powers as conferred therein decided to fill up the office of Block Pramuk throughout the State of Uttar Pradesh including Block Pramuk of Block Gangoh, Tehsil Nakud, District Saharanpur which was earmarked under OBC (Woman) reservation category. The date of the nomination of the candidates for election to the office of Pramukh was 08.07.2021 and nomination could be withdrawn by 09.07.2021 and the date of the election for the office of Pramukh was scheduled on 10.07.2021. As per the writ petitioner/ Munni Devi filed objections (Paper No. 25C/13) against the nomination of Smt. Babli w/o Mem Singh, sixth respondent on the ground that her name stands recorded in Uttarakhand Legislative Assembly-25 at Haridwar and Lok Sabha-5 Haridwar at Serial No. 142, Aryanagar, Jwalapur, U. Bhawan, K.N.-1 and Serial No. 781, Shivalik Shishu Junior High School, Aryanagar, Uttari Bhawan, Tehsil Haridwar. Since the name of the sixth respondent found place at both the places i.e. Saharanpur, Uttar Pradesh and Haridwar, Uttarakhand, thus, her name be deleted from one place to contest election to the other place. Then after scrutiny of the nomination’s papers, the nomination of the 6th respondent, (Smt. Babli W/O Mem Singh) and Kavita W/O Vikash Kumar resident of Village Dabkaula was rejected due to non-compliance of condition No. 6(A) of the Directive issued by State Election Commission, U.P., Lucknow vide Letter No. 4169/ Ra. Ni. Aa.-3/P.Ni./53-21/2021 dated 25.07.2021.
4. It is also the case of the petitioner, that due to the rejection of the nomination of the 6th respondent and Smt. Suman, they raised objection that their nomination paper cannot be rejected. Assistant Returning Officer/ District Cane Officer, Saharanpur, thereafter wrote a letter dated 09.07.2021 to District Election Officer, Saharanpur, apprising all the factual and the legal position and found that the objections of the 6th respondent and Smt. Kavita had no force. The elections were conducted on 10.07.2021 and the petitioner is claimed to be elected unopposed for the office of Block Pramukh of Block Gangoh, Tehsil Nakud, District, Saharanpur, under OBC (Women) Reservation Category.
5. The same led to filing of an election petition by Smt. Babli, 6th respondent, before the District Judge/ Election, Tribunal, Saharanpur, which was numbered as Election Petition No. 217 of 2021 (Smt. Babli v. State of Uttar Pradesh and 4 others), seeking relief to the extent that election for the office of Block Pramukh of Block Gangoh, District Saharanpur be declared void, and an appropriate directions be issued in that regard against the defendants in the election petition.
6. On being noticed, the present petitioner filed his written statement and reply was also filed by the defendant nos. 1 and 3 being the State of Uttar Pradesh, through its Collector, Saharanpur, Collectorate, Saharanpur and the Election Officer, DCO/ Deputy Cane Commissioner, Saharanpur.
7. Vide order dated 03.07.2022, the District Judge/ Election Tribunal, Saharanpur framed two issues, namely, (a) whether on the basis of the averments made in the election petition, the uncontested election of the Opposite Party No. 4 (writ petitioner) and such declaration order dated 10.7.2021 issued by Opposite Party No. 3 (Election Officer / DCO, Ganna Bhavan, Saharanpur) could be set aside and the election of the Opposite Party No. 4 (writ petitioner) can be declared null and void; (b) whether the present election petition is maintainable as per the averments made by Opposite Party No. 4 (writ petitioner).
8. The writ petitioner herein who was defendant No. 4 in the election petition filed an application (34C) along with an affidavit 40-A by which evidences were adduced before the Election Tribunal. The statement of an oath of Smt. Babli W/O Mem Singh, sixth respondent was recorded before the Election Tribunal on 17/25.08.2022. The statement of the petitioner was also recorded an oath before the Election Tribunal on 31.01.2023.
9. However, vide order dated 20.09.2023, the District Judge/ Election Tribunal, Saharanpur proceeded to pass the impugned order by which the election of the Opposite Party No.4 in the election petition/petitioner for the office of Pramukh of Block Gangoh provisional election area No. 98 was declared null and void while setting aside the order dated 10.07.2021 passed by the Election Officer/ DCO, Ganna Bhawan, Saharanpur.
10. Questioning the order dated 20.09.2023 passed by the District Judge/ Election Tribunal, Saharanpur setting aside the election of the petitioner, the office of the Pramukh of Block Gangoh, Saharanpur, the present petition has been preferred.
11. When the matter was taken up, a preliminary objection came to be raised by the respondents herein that the present petition is not maintainable, particularly when, the order in question which is subject matter of challenge is appealable under Rule 49 of the Uttar Pradesh Kshettra Panchayats (Election of Pramukhs and Up-Pramukhs and Settlement of Election Disputes) Rules, 1994 (hereinafter referred to as ‘The Rules 1994’) as the order dated 20.09.2023 comes within the purview of Rule 44 of the 1994, Rules. The said objection came to be dispelled by this Court vide order dated 27.10.2023 and and interim order came to be passed, restraining the State Election Commissioner (Panchayat and Local Bodies) State Election Commission, U.P., Lucknow from notifying the elections in question without the leave of the Court. Aggrieved against the part of the order impugned in the petition, the petitioner herein preferred Special Leave Petition (C) Diary No. 41647 of 2025 (Munni Devi v. State of U.P. and others), in which on 08.08.2025, the following orders were passed: “Delay condoned. Though we are not inclined to interfere with the impugned order, we appreciate the actual grievance expressed by the learned counsel appearing for the petitioner that out of the 5 years of the election term, nearly 4 years are already over without any adjudication. In such view of the matter, we request the High Court to make an endeavour to dispose of Writ-C No.34527/2023, within a period of four months from the date of receipt of copy of this order. The Special Leave Petition stands disposed of. Pending application(s), if any, shall also stand disposed of.”
Argument of learned counsel for the writ petitioner
12. Shri K.R. Singh assisted by Shri Bharat Singh Pal, learned counsel for the writ petitioner has sought to argue that the order dated 20.09.2023 passed by the District Judge/ Election Tribunal, Saharanpur declaring the election of the petitioner as Block Pramukh of Block Gangoh, Tehsil Nakud, Saharanpur on 10.07.2021 as void cannot be sustained for more than one reason. Firstly, the election petition itself was not maintainable, particularly, Chapter VI of the 1994 Rules itself provide for the disputes regarding election of the Pramukh and Up-Pramukhs, Rule 35 further provides for the time and the manner of the presenting petitioner, Rule 36 form etc. of the petitions and Rule 37 relief which may be claimed by the election petitioner but none of the said provisions in any manner whatsoever provide for filing of an election petition when a candidate is aggrieved against rejection of his nomination.
13. Submission is that the principles of benevolent legislation are not applicable in election matters as strict interpretation is to be resorted to. Argument is that there happens to be an enactment by the name and the nomenclature of the Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 wherein Section 13 deals with the disqualification for membership of Kshettra Panchayat and further Section 16 also deals with the removal of Pramukh/ Up-Pramukh whereas Section 27 also deals with dispute as to the membership or disqualifications, thus, only those grounds which are specified in the above noted sections can only be taken into account for the purposes of challenge by means of election petition and no other grounds.
14. In nutshell submission is that the Election Tribunal has exceeded its jurisdiction and travelled beyond the scope and permission and has passed an order which cannot be sustained in the eyes of law. It is also contended that by passing of the order dated 20.09.2023 declaring the election of the office of Block Pramukh invalid and void, a vacancy has been arisen that too on the basis of certain factors which are beyond the scope and the purview of election petition.
15. Additionally, it has been argued that the basic reason attributable for rejection of the nomination of the Smt. Babli, sixth respondent is the fact that as per Rule 8 of the 1994 Rules, any person who desires to be nominated as the candidate at an election to the office of the Pramukh shall deliver in person or through his proposer and seconder nomination form duly filled in Form-II to the returning officer within the hours of 11 o’clock in the forenoon and 3’O clock in the afternoon on that date and the place specified in the notice under Rule 6, and the nomination paper shall be signed by the candidate and attested himself as assenting to the nomination and also by one member as proposer and other member as seconder. Argument is, here though, there happened to be the photograph of the sixth respondent in the nomination form, but the same was not self-attested, either by the sixth respondent or by the proposer and seconder. Thus, in view of the provisions contained under Clause 6(a) of the circular issued by the State Election Commission, Uttar Pradesh on 05-07-2021, which is mandatory in nature, rightly, the nomination of the sixth respondent, Smt. Babli, was cancelled.
16. Argument is to the extent that circular being mandatory in nature and holding the field would dis-entitle the sixth respondent for any relief and in failing to appreciate the crucial aspect of the matter which goes to the root, the election petition could not have been allowed. It is also contended that in the cross-examination before the Election Tribunal, sixth respondent, Smt. Babli had admitted that the photographs of the nomination form was not self-attested either by her or by the proposer and the, seconder.
17. It is submitted that the allegation so leveled by the sixth respondent, Smt. Babli that though the petitioner was permitted to get the self-attestation done in the photograph so appended in the nomination form and the said request was denied to the sixth respondent is preposterous besides being misconceived for the simple reason that the records even otherwise depict that despite opportunity accorded to the sixth respondent, she did not get the photographs so appended in the nomination form self-attested in that regard. To put in otherwise, according to the learned counsel for the petitioner, there happens to be a communication of the Election Officer/ District Cane Officer, Saharanpur/ Assistant District Election Officer addressed to the District Election Officer, Saharanpur dated 09-07-2021 and also in the written submission so submitted by the State which was marked at paper No. 33-A, a specific ground was taken that despite giving opportunity to be respondent no. 6, Smt. Babli to rectify the defect relating to self-attestation by herself, proposer and seconder, no steps were taken. In order to buttress the submission, reliance has been placed upon, the judgement of the Hon’ble Apex Court in Jyoti Basu and others v. Debi Ghosal and others; AIR 1982 SC 983, Smt. Guddi Devi v. The State Election Commissioner, Haryana and others; AIR 1995 P & H 101 and Anju v. Addl. Civil Judge (Sr. Division) Pehowa and others; CWP No. 15310 of 1996, decided on 12.03.1998. Thus it is prayed that the petition be allowed in toto and the order be set aside.
Argument of the counsel for sixth respondent, Smt. Babli
18. Countering the submissions so made by the learned counsel for the petitioner, Shri N.K. Pandey who appears for the sixth respondent has submitted that none of the contentions raised by the counsel for the petitioner has any legs to stand.
19. Submission is that the basic ground for challenge raised in the election petition under Section 35 of the 1994 Rules is with regard to illegal rejection of the nomination. Chapter VI of the 1994 Rules deals with the disputes regarding the election of Pramukh and Up-Pramukh and Rule 35 prescribes the time and the manner of presenting election petitions, Rule 36, forms etc. of petition, Rule 37 reliefs that can be claimed by the petitioner, thus, according to him, in absence of anything in the said rules restricting the grounds only on which election petition can be filed and it would not be appropriate and rather violence to the provisions so as to introduce something which is not provided while coming up with a stand that rejection or acceptance of nomination is not a ground of challenge in an election petition.
20. Contention is that in view of the language employed in Rule 35, 36, and 37, all the grounds are open to the raised as in case it was the intention of the legislature to restrict certain grounds while excluding others, then obviously they could have been engrafted in the statute. It is also contended that the elections of Pramukh and Up-Pramukh which are subject matter herein is an indirect election in contrast with the elections of Gram Pradhans as per U.P. Panchayati Raj Act, 1947 where the elections are direct elections. According to the learned counsel for the sixth respondent, Section 12-C of the U.P. Panchayati Raj Act, 1947 itself deals with the grounds questioning the elections and one of them is improper acceptance or rejection of any nomination and the said aspect stands provided under Rule 3 of the Uttar Pradesh, Panchayati Raj (Settlement of Election Dispute) Rules, 1994 and the said provisions are pari materia to position which is existing in Section 100 of the Representation of the Peoples Act, 1951. Contention is that in the said enactments, grounds have been given which can only be made the basis for filing election petition, however, in the case of 1994 Rules relatable to Pramukh and Up-Pramukh, no grounds are mentioned except the fact that Rule 36 of the 1994 Rules only specifies that there should be ground or grounds which should be in election petition while questioning the elections.
21. Reliance has been placed upon the judgement of the Coordinate Bench in Anil Kumar v. Smt. Suchita; 2009 (3) UPLBEC 2361 so as to contend that the similar controversy came up for consideration wherein pari materia provisions of the 1994 Rules as available in Uttar Pradesh Zila Panchayat (Election of Adhyaksha and Up-Adhyaksha and Settlement of Election Dispute) Rules, 1994, wherein 35 Rules of 1994 Rules were similar to Rule 33 of the 1994 Rules and it was observed that the grounds of filing of election petitions are quite wide and they cannot be restricted while limiting the same in view of the provisions contained under the 1961 Act.
22. It is also contended that though there happened to be non-self-attestation of photographs in the nomination form of the sixth respondent, proposer and seconder which was required to be done in view of the circular of the State Election Commission dated 25.07.2021, the same cannot be a ground to reject the nomination, particularly, when it is a curable defect and consequences thereof its non-compliance would not be fatal. It is submitted that in the case of the writ petitioner, there also photograph was not self-attested but an opportunity was accorded to the writ petitioner to get the same attested but despite request being raised by the sixth Respondent seeking an opportunity to get its self-attested, the same was denied on the ground that there is no need for attestation. Contention is that once consequences of non-fulfillment of one of the requirement is not provided then the extreme act of rejection of the nomination cannot be done. Attention has been drawn towards, Rule11 of the 1994 Rules so as to contend that sub-rule (2) of Rule 11 deals with certain grounds which commences from (a) to (g), the case of the six respondent does not stand covered under the same and in view of sub-rule (4) of Rule 11 of 1994 Rules, the returning officer is not required to reject any nomination paper on the ground of any technical defect or any other which is not of substantial character. Argument is that once the proposer, seconder and the candidate himself was present before the returning officer at the time of nomination/ scrutiny and they were asking for self-attestation then the same cannot be a ground to reject the nomination.
Argument of the State
23. Learned Addl. Chief Standing Counsel appearing on behalf of the State has adopted the arguments of the learned counsel for the petitioner, according to him, he has nothing to add except the fact that the order impugned cannot be sustained. The election petition against the rejection of the nomination is not maintainable.
Argument of State Election Commission
24. Shri Prakhar Saran Srivastava who appears for the State Election Commission submits that the real purpose of the incorporation of clause 6(a) of the Circular dated 05.07.2021 is that any person who desires to be nominated as a candidate as an election to the office of the Pramukh shall deliver in person or through its proposer and seconder, a nomination form duly filled in Form-II to the returning officer. Thus, nomination form is to be delivered either by a candidate or his proposer or seconder and there is no mandate that all the three have to be present at the time of filing of the nomination. Further Rule 8(2) provides for signing of nomination form by the candidate as assenting to the nomination and also by one member as proposer and another member as seconder. According to him, Rule 10 describes the procedure for filing of nomination paper which only requires the returning officer to enter therein, the serial number and the date and the hour at which the nomination paper has been delivered to him. There is nothing more to be required to be done else not even point out defects in the nomination paper and Rule 11(1) of the 1994 Rules permits the presence of the candidate, his proposer and seconder to attend the scrutiny. It is at that stage, three persons are permitted to be inside and witness the scrutiny and returning officer is under obligation to give all reasonable facilities to examine the duly nomination paper. According to him, attestation in the photographs over the nomination paper is only to ensure free and fair election and it is mandatory in nature. Contention is that the guidelines of the State Election Commission issued under Section 243-K of the 1961 Act are binding in view of the judgment of the Hon’ble Apex Court in the case of Union of India v. Association for Democratic Reforms and another; 2002 (5) SCC 294.
Constitutional Provisions/ Statutory Enactments/ Circulars/ Communications
PART IX of the Constitution
The Panchayat Article 243-B Constitution of Panchayats- 1. There shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of this Part. 2. Notwithstanding anything in Clause (1), Panchayats at the intermediate level may not be constituted in a State having a population not exceeding twenty lakhs. Article 243-C Composition of Panchayats – 1. Subject to the provisions of this Part, the Legislature of a State may, by law, make provisions with respect to the composition of Panchayats: Provided that the ratio between the population of the territorial area of a Panchayat at any level and the number of seats in such Panchayat to be filled by election shall, so far as practicable, be the same throughout the State. 2. All the seats in a Panchayat shall be filled by persons chosen by direct election from territorial constituencies in the Panchayat area and, for this purpose, each Panchayat area shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it shall, so far as practicable, be the same throughout the Panchayat area. 3. The Legislature of a State may, by law, provide for the representation – a. of the Chairpersons of the Panchayats at the village level, in the Panchayats at the intermediate level or, in the case of a State not having Panchayats at the intermediate level, in the Panchayats at the district level; b. of the Chairpersons of the Panchayats at the intermediate level, in the Panchayats at the district level; c. of the members of the House of the People and the Members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly Panchayat area at a level other than the village level, in such Panchayat; d. of the members of the Council of States and the members of the Legislative Council of the State, where they are registered as electors within – i. a Panchayat area at the intermediate level, in Panchayat at the intermediate level; ii. a Panchayat area at the district level, in Panchayat at the district level. 4. The Chairperson of a Panchayat and other members of a Panchayat whether or not chosen by direct election from territorial constituencies in the Panchayat area shall have the right to vote in the meetings of the Panchayats. 5. The Chairperson of – (a). a Panchayat at the village level shall be elected in such manner as the Legislature of a State may, by law, provide; and (b). a Panchayat at the intermediate level or district level shall be elected by, and from amongst, the elected members thereof. Article 243-E Duration of Panchayats, etc.- 1. Every Panchayat, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer. 2. No amendment of any law for the time being in force shall have the effect of causing dissolution of a Panchayat at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in Clause (1). 3. An election to constitute a Panchayat shall be completed – a. before the expiry of its duration specified in clause (1); b. before the expiration of a period of six months from the date of its dissolution: Provided that where the remainder of the period for which the dissolved Panchayat would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Panchayat. 4. A Panchayat constituted upon the dissolution of a Panchayat before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Panchayat would have continued under Clause (1) had it not been so dissolved. Article 243-F Disqualifications for membership- 1. A person shall be disqualified for being chosen as, and for being, a member of a Panchayat – a. if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned: Provided that no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age of twenty-one years; b. if he is so disqualified by or under any law made by the Legislature of the State. 2. If any question arises as to whether a member of a Panchayat has become subject to any of the disqualifications mentioned in Clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide. Article 243-K Elections to the Panchayats – 1. The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor. 2. Subject to the provisions of any law made by the Legislature of a State, the conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may by rule determine: Provided that the State Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of a High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment. 3. The Governor of a State shall, when so requested by the State Election Commission, make available to the State Election Commission such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by Clause (1). 4. Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Panchayats. Article 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 243K, shall not be called in question in any Court; b. no election to any Panchayat 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. The Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 6. Composition of Kshettra Panchayat ? (1) A Kshettra Panchayat shall consist of a Pramukh, who shall be its Chairperson and ? (a) all the Pradhans of the Gram Panchayats in the Khand; (b) elected members, who shall be chosen by direct election from the territorial constituencies in the Panchayat area and for this purpose the Panchayat area shall be divided into territorial constituencies in such manner that, so far as practicable, each territorial constituency shall have a population of two thousand: Provided that the hill Districts of Nainital, Almora, Pithoragarh, Tehri, Pauri, Dehradun, Chamoli or Uttarkashi, the State Government may declare an area within a radius of one kilometer (diameter of two kilometer) from the center of the village specified by it in this behalf, to be territorial constituency though such area may have a population of less than two thousand: Provided further that in the territorial constituency of a Kshettra Panchayat, no territorial constituency of a constituent Gram Panchayat shall be included in part. 6-B. Electoral rolls for Kshettra Panchayat ? (1) There shall be an electoral roll for each territorial constituency of a Kshettra Panchayat. (2) The electoral roll for the territorial constituency of a Kshettra Panchayat shall consist of the electoral rolls prepared under Section 9 of the United Provinces Panchayat Raj Act, 1947 for all territorial constituencies of a Gram Panchayat or Gram Panchayats comprised within the territorial constituency of the Kshettra Panchayat and it shall not be necessary to prepare or revise separately the electoral roll for any such territorial constituency of a Kshettra Panchayat; Provided that any correction, deletion or addition made in the electoral roll after the last date for making nominations for any election to the Kshettra Panchayat and before the completion of that election shall not be taken into consideration for the purposes of that election. 7. Pramukh and Up-Pramukh? (1) In every Kshettra Panchayat a Pramukh, a Senior Up-Pramukh and a Junior Up-Pramukh shall be elected by the elected members of the Kshettra Panchayat from amongst themselves. (2) The election to the office of Pramukh and Up-Pramukh may be held notwithstanding any vacancy in the office of the elected members of Kshettra Panchayat. (3) Notwithstanding anything to the contrary contained in any other provision of this Act, the persons who have been elected to the office of the Up-pramukh before the commencement of the Uttar Pradesh Panchayat Laws (Amendment) Act, 2007 shall continue to hold the office as such till the expiry of their term as if the said Ordinance were not promulgated. 12. Filling of casual vacancies – If a vacancy occurs by reason of death or otherwise in the office of a Pramukh, Up-Pramukh or an elected member of the Kshettra Panchayat. it [shall be filled before the expiration of a period of six months from the date of such vacancy] in the manner provided for in sections 6 or 7, as the case may be, for the residue of the term of his predecessor: Provided that if on the date of occurrence of such vacancy the residue of the term of the Kshettra Panchayat is less than six months, the vacancy shall not be filled. 13. Disqualification for membership of Kshettra Panchayat ? A person shall be disqualified for being chosen as and for being a member of a Kshettra Panchayat, if he- (a) is so disqualified by or under any law for the time being in force for the purposes of election of the State Legislature; Provided that no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the aged of twenty-one years. (b) holds any office of profit under a State Government or the Central Government or a local authority, or a Nyaya Panchayat established under Section 42 of this United Provinces Panchayat Raj Act, 1947; (c) has been dismissed from the service of a State Government, the Central Government or a local authority or a Nyaya Panchayat or a Co-operative Society registered under the Uttar Pradesh Co-operative Societies Act, 1965 for misconduct; (d) is in arrears of any tax, fee rate or any other dues payable by him to the Gram Panchayat, Kshettra Panchayat or Zila Panchayat for such period as may be prescribed, or has, inspite of being required to do so by the Gram Panchayat, Nyaya Panchayat, Kshettra Panchayat or Zila Panchayat failed to deliver to it any record or property belonging to it which had come into his possession by virtue of his holding any office under it. (e) is an undischarged insolvent; (f) has been convicted of an offence involving moral turpitude. (g) has been sentenced to imprisonment for a term exceeding three months for contravention of any order made under the Essential Commodities Act, 1955. (h) has been sentenced to imprisonment for a term exceeding six months or to transportation for contravention of any order made under the Essential Supplies (Temporary Powers) Act, 1946 or the U.P. Control Supplies (Temporary Powers) Act, 1947. (i) has been sentenced for an imprisonment for a term exceeding three months under the U.P. Excise Act, 1910. (j) has been convicted for an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985. (k) has been convicted of an election offence. (l) has been convicted of an offence under the U.P. Removal of Social Disabilities Act, 1947 or the Protection of Civil Rights Act, 1955. (m) is debarred from practicing as a legal practitioner by order of any competent authority. (n) has been declared under Section 23 to have committed any corrupt practice within the meaning of that section and such declaration continues to be effective; or (o) is not registered in the electoral rolls for any territorial constituency of the Kshettra Panchayat. Provided that the period of disqualification under clauses (c), (e), (f), (g), (h), (i), (j), (k) or (l) shall be five years from such date as may be prescribed. Provided further that the disqualification under clause (d) shall cease upon payment of arrears or delivery of the record or property, as the case may be. Provided also that a disqualification under any of the clauses referred to in the first proviso may, in the manner prescribed, be removed by the State Government 16. Removal of Pramukh or Up-Pramukh ? (1) If in the opinion of the State Government the Pramukh or any Up-Pramukh of a Kshettra Panchayat willfully omits or refuses to perform his duties and functions under this Act, or abuses the powers vested in him or is found to be guilty of misconduct in the discharge of his duties or becomes physically or mentally incapacitated for performing his duties, the State Government may, after giving the Pramukh or such Up-Pramukh as the case may be, a reasonable opportunity for explanation and after consulting the Adhyaksha of the Zila Panchayat concerned in the matter and taking into consideration his opinion, if received within thirty days from the date of the dispatch of the communication for such consultation, by order, remove such Pramukh or Up-Pramukh, as the case may be, from office, and such order shall be final and not open to be questioned in a Court of law. Provided that where, in an enquiry held by such person and in such manner as may be prescribed, a Pramukh or 4[x x x] is prima facie found to have committed financial and other irregularities, such Pramukh or Up-Pramukh shall cease to exercise and perform the financial and administrative powers and functions, which shall, until he is exonerated of the charges in the final enquiry, be exercised and performed by a committee consisting of three elected members of the Kshettra Panchayat appointed in this behalf by the State Government. (2) A Pramukh or Up-Pramukh removed from his officer under this section, shall not be eligible for re-election as Pramukh or Up-Pramukh for a period of three years from the date of his removal. 18. Composition of Zila Panchayat ? (1) A Zila Panchayat shall consist of an Adhyaksha who shall be its Chairperson, and ? (a) Pramukh of all Kshettra Panchayats in the District; (b) Elected members, who shall be chosen by direct election from the territorial constituencies in the Panchayat area and for this purpose the Panchayat area shall be divided into territorial constituencies in such manner that, so far as practicable, each such territorial constituency shall have a population of fifty thousand: Provided that in the hill districts of Nainital, Almora, Pithoragarh, Tehri, Pauri, Dehradun, Chamoli or Uttarkashi, the State Government may declare an area within a radius of seven kilometers (diameter of fourteen kilometers) from the center of the village specified by it in this behalf, or an area equivalent thereto as may be prescribed, to be a territorial constituency though such constituency may have a population of less than fifty thousand. Provided further that in the territorial constituency of a Zila Panchayat, no territorial constituency of a Kshettra Panchayat comprised within it, shall be included in part. 27. Disputes as to membership or disqualifications ? (1) If any dispute arises as to whether a particular person is a member of the 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 [x x x] a member of a Zila Psnchayat under Section 18; or (b) has ceased to remain eligible for being chosen [x x x] a member [x x x] 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. The Uttar Pradesh Kshettra Panchayats (Election of Pramukhs and Up-Pramukhs and Settlement of Election Disputes) Rules, 1994 8. Nominations. (1) Any person who desires to be nominated as a candidate at an election to the office of Pramukh of a Panchayat shall deliver in person or through his proposer and seconder a nomination paper duly filled in Form II to the Returning Officer within the hours of 11 O’clock in the forenoon and 3 O’clock in the afternoon on the date and at place specified in the notice under Rule 6. (2) The nomination paper shall be signed by the candidate himself as assenting to the nomination and also by one member as proposer and another member as seconder. (3) Where a candidate seeks election to a seat reserved for the Scheduled Tribes or the Scheduled Castes or the backward classes, there shall accompany with the nomination paper a declaration subscribed by him stating that he is a member of the Scheduled Tribes or the Scheduled Castes or the backward classes, as the case may be, specifying the particular tribe or caste to which he belongs. (4) A nomination paper filed after the last hour mentioned in sub-rule (1) shall forthwith be rejected by the Returning Officer. 10. Procedure of filling of nomination papers.- The Returning Officer shall on receiving a nomination paper under Rule 8 enter thereon its serial number and the date on which and the hour at which the nomination paper has been delivered to him, and shall as soon as may be thereafter, cause to be affixed at some conspicuous place in his office a notice of the nominations in Form III containing descriptions similar to those contained in the nomination paper, both of the candidates and of the persons who have signed the nomination papers as proposer and seconder. 11. Scrutiny of nominations.- (1) At the scrutiny of nominations, the candidates, their proposers and seconders but no other person, may attend. The Returning Officer shall give them all reasonable facilities for examining the duly received nomination papers. (2)The Returning Officer shall examine the nomination papers and decide all objections which may be made to any nomination, and may either on such objection or on his own motion after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds- (a)that the candidate is not qualified to be chosen to the office under the Act; (b)that the candidate is disqualified for being chosen to the office under the Act; (c)that there has been any failure to comply with any of the provisions of Rules 8 and 9; (d)that the signature of the candidate or the proposer or seconder is not genuine or has been obtained by fraud; (e)that candidate is not a member; (f)that the proposer or the seconder is not a member; (g)that the candidate does not belong to the tribe or caste or class or sex for whom the office is so reserved. (3)Nothing contained in clause (c), (d), (e), (f) or (g) of sub-rule (2) shall be deemed to authorise the rejection of the nomination of any candidate on the ground of any irregularity in respect of a nomination paper if the candidate has been duly nominated by means of another nomination paper in respect of which no irregularity has been committed. (4)The Returning Officer shall not reject any nomination paper on the ground of any technical defect or other error which is not of a substantial character and may for the purpose of removing any such defect or error allow any entry to be corrected in the nomination paper including any entry relating to name or number on the election roll. (5)The order of the Returning Officer allowing any correction to be made under sub-rule (4) shall be final and shall not be questioned in any Court of law. (6)The Returning Officer shall hold the scrutiny on the date and time appointed in this behalf under Rule 6 and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by cause beyond his control. (7)The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected shall record in writing a brief statement of his reasons for such rejection. (8)For the purpose of this rule the existence of the name of a person in the list of members prepared under Rule 7 shall be conclusive evidence that he is eligible for election to the post of Adhyaksha. (9) Immediately after all the nomination papers have been scrutinised and decisions accepting or rejecting the same have been recorded, the Returning Officer shall prepare in Form III-A, a list of validly nominated candidates, that is to say, candidates whose nominations have been found valid and affix it to his notice board. 35. Time and manner of presenting petitions.- (1)An election petition calling in question the election of a Pramukh or Up-Pramukh, may be presented to the Judge at any time within thirty days from the date of declaration of the result under Rule 14 or Rule 29, as the case may be. (2)It shall be presented in person by the petitions or if there are more than one petitioner, by any one or more of them. 36. Form, etc. of petition.- (1)An election petition shall specify the ground or grounds on which the election of the returned candidate is questioned and shall contain a summary of the circumstances alleged to justify the election being questioned on such ground. (2)The person whose election is questioned and where the petitioner claims that any other candidate shall be declared elected in the place of such person, every unsuccessful candidate shall be made a respondent to the petition. 37. Relief that may be claimed by the petitioner.- A petitioner may claim either of the following declarations- (a)that the election of the returned candidate is void: (b)that the election of the returned candidate is void and that he himself or any other candidate has been duly elected. The Uttar Pradesh Zila Panchayat (Election of Adhyaksha and Up-Adhyaksha and Settlement of Election Dispute) Rules, 1994 33. Time and manner of presenting petitions.- (1) An election petition calling in question the election of a Pramukh or Up-Pramukh, may be presented to the Judge at any time within thirty days from the date of declaration of the result under Rule 14 or Rule 29, as the case may be. (2) It shall be presented in person by the petitions or if there are more than one petitioner, by any one or more of them. 34. Form, etc. of petition.- (1) An election petition shall specify the ground or grounds on which the election of the returned candidate is questioned and shall contain a summary of the circumstances alleged to justify the election being questioned on such ground. (2) The person whose election is questioned and where the petitioner claims that any other candidate shall be declared elected in the place of such person, every unsuccessful candidate shall be made a respondent to the petition. 35. Relief that may be claimed by the petitioner.- – A petitioner may claim either of the following declarations- (a) that the election of the returned candidate is void: (b) that the election of the returned candidate is void and that he himself or any other candidate has been duly elected.
Analysis
25. I have heard the submissions made across the bar and perused the record carefully.
26. To begin with there are certain undisputed facts. Namely, a notification to be issued by the State of Uttar Pradesh for filling up the office for Block Pramukh throughout the State of Uttar Pradesh inclusive of Block Pramukh of Block Gangoh, Tehsil Nakud, District Saharanpur which was under OBC (Woman) Category. The date scheduled for nomination was 08-07-2021, the same could be withdrawn by a candidate by 09-07-2021 and the election was scheduled on 10-07-2021. The petitioner/ returned candidate along with the election petitioner, sixth respondent/ Smt. Babli and one Smt. Suman had submitted their nomination form. The nomination form of the sixth respondent, Smt. Babli and of Smt. Suman, seventh respondent, came to be rejected. The ground for rejection of the nomination form of Smt. Babli, sixth respondent was that the photograph so attended in the nomination form was neither attested by the election petitioner/ sixth respondent nor by the proposer or the seconder. As a matter of fact, the petitioner/ returned candidate also filed an objection (Paper No. 25-C/13) against the nomination of the election petitioner/ sixth respondent, Smt. Babli taking a ground that her name stands recorded in Uttarakhand Legislative Assembly-25 at Haridwar and Loksabha- 5, Haridwar at serial No.142, Aryanagar, Jawalapur, U-Bhavan, K.N.-1 and serial No.781, Shivalik Shishu Junior High School, Aryanagar, Uttari Bhavan, Tehsil and District Haridwar. Thus, the name of the election petitioner/ sixth respondent is to be deleted from one place to contest election at the other place. Aggrieved of the rejection of the nomination by the official respondents, the election petitioner/ sixth respondent instituted instituted an election petition No. 217/2021 before the court of District Judge/ Election Tribunal, Saharapur, Smt. Babli v. State of Uttar Pradesh and others, under Section 35 of the 1994 Rules seeking following relief: “(?) ??????? ?????? ????? ????????? ???????? ??????? ?????? -98 ?? ??????? ?????? 4 ?? ?????? ?? ?? ?? ?????? 20215 ?? ???????? ????????? ???? ???? ???????? ????????? ?????? 1 ?? 3 ?? ???? ?? ?????? ?? ??????? ??0-4 ?? ????? ????? ????? ???? ????? (?) ???? ??? ?????? ?? ??? ???????? ?? ??? ??? ???? ?? ???? ??? ????? ?? ???? ???? ?????? ??, ???? ?? ???? ??? ??? ????????? ?? ??????? ????? ?? ????? (?) ?? ????? ?????? ?? ???? ???? ?? ????????? ?? ?????? ?????”
27. The election petition on contest came to be allowed on 20.09.2023 setting aside/ cancelling the election dated 10.07.2021, declaring the election of the writ petitioner as illegal and void. The first and foremost question which arises for consideration is whether the election petition so preferred by the election petitioner against the rejection of nomination is maintainable or not. In order to address the said issue, what would be relevant, would be the legal position in the statutory framework. Chapter-IX of the Constitution of India deals with the Panchayats. Article 243-A talks about Gram Sabha who is to exercise such powers and performs such functions at the village level as the legislature of the State may by law provide, followed by Article 243-B that there shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions, Article 243-C deals with Composition of Panchayats whereas Article 243-E deals with duration of Panchayats, Article 243-F, disqualification of membership, Article 243K, election in the Panchayat. Thereafter comes Article 243-O which provides for a bar to interference by courts in election matters. Article 243-O (b) stipulates that no election to the Panchayat 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 the State. To put in otherwise, the election petition, questioning an election of any Panchayat can only be called in question in accordance with law before the designated authority as specified by the Legislature. In the present case, the election of Block Pramukh is the subject matter of controversy, thus, in exercise of the powers under Section 237 read with Section 264-B of the Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 (in short, ‘The 1961 Act’), the rules by the name and the nomenclature of the The Uttar Pradesh Kshettra Panchayats (Election of Pramukhs and Up-Pramukhs and Settlement of Election Disputes) Rules, 1994 came to be enacted. Chapter IV of the 1994 Rules deals with the dispute regarding elections of Pramukhs and Up-Pramukhs. Notably Rule 35 prescribes the time and the manner of election petition, according to which, an election petition calling in question the election of Pramukh or Up-Pramukh is to be presented to the Judge at any time within 30 days from the date of the declaration of the result under Rule 14 and 29 as the case may be. Rule 36 provides that an election petition shall specify the ground and grounds on which the election of a returned candidate is questioned and shall contain a summary of circumstances alleged to justify election being questioned on the said ground. Sub-rule (2) of Rule 36 of the 1994 Rules further provides that the person whose election is questioned and where the election petitioner claims that any other candidate shall be declared elected in the place of such person, every unsuccessful candidate shall be made a respondent to the petition. Rule 37 of the 1994 Rules provides for the nature of the relief which can be claimed in the election petition seeking declaration; (a) that the election of the returned candidate is void; (b) that the election of the returned candidate is void and that he himself or any other candidate has been duly elected. Interestingly, Rule 35, 36 and 37 of the 1994 Rules do not specify the grounds on which election petition is to be filed question the elections.
28. Apparently, there happens to be an act by the name of Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 wherein Section 6 deals with Composition of Kshettra Panchayat wherein the Kshettra Panchayat shall consist of a Pramukh, who shall be its Chairperson and all the Pradhans of the Gram Panchayats in the Khand and elected members, who shall be chosen by direct election from the territorial constituencies in the Panchayat area for the said purpose. Section 6-B deals with the election rolls for Kshettra Panchayat and Section 6-C provides for right to vote. Now comes Section 7 of the 1961 Act which mandates that in every Kshettra Panchayat, a Pramukh (a senior Up-pramukh and a junior Up-pramukh) shall be elected by elected members of Kshettra Panchayat for amongst others. Section 8 talks about the term of the Kshettra Panchayat and its members. Section 9, terms of Pramukh and Up-pramukh, Section 11 deals with the resignation of Pramukh, Up-pramukh or member and Section 12 further deals with filling of casual vacancies.
29. Section 13 of the 1961 Act talks about the disqualifications of membership of Kshettra Panchayat and Section 14 deals with disputes to the membership or disqualifications and Section 16, removal of Pramukh or Up-pramukh. Section 27 deals with the dispute as to membership or disqualifications.
30. The bone of contention between the parties is whether against the rejection of the nomination, the election petition is maintainable or not. Pertinently, Rules 35, 36 and 37 of the 1994 Rules nowhere provide any specific grounds on which election petition is to be presented. However, the word which has been employed is “ground or grounds” itself is quite wide and had the legislature intended to restrict the grounds so mentioned in the 1961 Act then nothing prevented from not specifying or referring to in Rule 35 of the 1994 Rules. It is also not the case of the parties that the 1994 Rules is ultra vires of the 1961 Act as the 1994 Rules came to be enacted in exercise of the powers under Section 237 read with Section 264-B of the 1961 Act. Certainly, the position might have been different, in case, there was any indication in the Rule 36 of the 1994 Rules that there are specific grounds on which the election petition could be filed but once the Rules are completely silent upon the said aspects and the word ‘ground and grounds’ have been mentioned then by no stretch of imagination, it can be said that only the grounds for disqualification so provided in the 1961 Act, would only be the ground for filing of the election petition. As regards, the Uttar Pradesh Zila Panchayat (Election of Adhyaksha and Up-Adhyaksha and Settlement of Election Dispute) Rules, 1994 are concerned and they have also been enacted in exercise of the powers under Rule 237 the 1961 Act and Rule 33 of the said Rule is pari materia to the Rule 35 of 1994 Rules whereas Rule 34 is pari materia to Rule 36 of the 1994 Rules and Rule 35 is also the pari materia to Rule 37 of 1994 Rules.
31. In Anil Kumar (supra) wherein an issue was framed regarding the maintainability of the election petition on the ground that Rule 33 of the the Uttar Pradesh Zila Panchayat (Election of Adhyaksha and Up-Adhyaksha and Settlement of Election Dispute) Rules, 1994 did not provide for filing of an election petition with regard to the qualification/ disqualification wherein the following was observed: “22. There is no dispute between the parties that the only ground on which the election petition was filed was that the respondent Smt. Suchita Patel was not 21 years of age on the relevant date and as such was disqualified for being nominated and elected as Adhyaksha of Zila Panchayat. 23. Sri Ravi Kiran Jain, in the view of the provisions of Section 27(2)(c) of the Act contends that as the issue raised in the election petition is with regard to qualification/disqualification of the respondent Smt. Suchita Patel to hold the office of Adhyaksha, the dispute is referable to the Judge and the election petition for the purpose as provided under Rule 33 of the Rules is not maintainable. Section 27 sub clause (2)(c) of the Act which is relevant provides that if a dispute arises as to whether a person has become disqualified to be Adhyaksha or Upadhyaksha, the dispute shall be referred to the Judge as may be prescribed. The manner and procedure of raising dispute under Section 27(2)(c) of the Act has been laid down in rules 48 to 52 of the Rules. For the sake of convenience the relevant part of the Section 27 of the Act is quoted herein below. “(1) …………………………………………………………. (2) If a dispute arises as to whether a person- (a) has been lawfully chosen [x x x] a member of a Zila Panchayat under Section 18; or (b) has ceased to remain eligible for being chosen [x x x] a member [x x x] 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.” 24. The power given under Section 27 of the Act is very limited in nature and is confined only to cases where an Adhyaksha or Upadhaksha after being elected becomes disqualified. Thus, it is only in the limited cases where the person subsequent to election for one reason or the other earns disqualification that the matter is referable to the Judge concerned and not otherwise. In other words, where a person who was disqualified from the very beginning to contest for the post of Adhyaksha and to hold the same, the provisions of Section 27(2)(c) of the Act would not come into play. In that event, an election petition under Rule 33 alone would be maintainable as it would amount to incorrect acceptance of nomination of a person who is not qualified. 25. On the contrary Article 243-O of the Constitution provides that no election to any Panchayat (which obviously include the post/office of Adhyaksha) shall be called in question except by an election petition. In consonance thereof Rule 33 of the Rules provide for disputing the election of Adhyaksha or Upadhyaksha by presenting an election petition to the Judge concerned for which no specific grounds have been enumerated. 26. A bare reading of Rule 33 of the Rules demonstrates that it is much wider in amplitude in comparison to Section 27 of the Act. Rule 33 provides that an election of an Adhyaksha or Upadhyaksha of Zila Panchayat can be questioned by filing an election petition before the Judge concerned and such a petition can be on any ground whatsoever as the grounds have not been enumerated therein i.e. adopting corrupt practice, incorrect acceptance or rejection of the nomination paper or even on the ground of disqualification of the person concerned, etc. It would not be proper to give a restrictive meaning to Rule 33 of the Rules so as to exclude the ground of disqualification from its ambit in view of the language used in Article 243-O of the Constitution. 27. Section 18-C of the Act clearly lays down that a person who has not completed the age of 21 years shall not be qualified to be elected as a member or office bearer of the Zila Panchayat. The effect of the aforesaid provision is that the election of a person who does not fulfil the above requirement would be void. In the case of Sushil Kumar Vs. Rakesh Kumar (2003) 8 SCC 673 the Supreme Court observed such a question undisputedly would fall for consideration in an election petition as despite disqualification the acceptance of nomination paper of such a person amounts to incorrect acceptance. 28. There is another angle for arriving at the above conclusion. Both under Section 27(2)(c) of the Act and Rule 33 of the Rules, the matter is to be adjudicated by the Judge concerned which under Section 2(24) of the Act means the District Judge and any other sub-ordinate Civil Judge or judicial officer named or designated by the District Judge in this behalf. As such the dispute in both the cases is to be decided by the same person/authority for which the procedure is also the same. Therefore, it makes no difference if such a dispute comes before the Judge concerned either by reference under Section 27(2)(c) of the Act or though on election petition under Rule 33 of the Rules. 29. In view of the above limited sphere of operation of Section 27(2)(c) of the Act, I am of the firm opinion that the Court below manifestly erred in deciding issue No.3 and holding that the election petition was barred. Therefore, the finding on the said issue deserves to be set aside and is hereby set aside and it is held that the election petition under Rule 33 of the Rules is maintainable even on the ground of disqualification which is said to have existed at the time of nomination.”
32. As regards, the reliance placed upon the judgment of the Hon’ble Apex Court in Jyoti Basu and others v. Debi Ghosal and others; AIR 1982 SC 983 so as to contend that Election Tribunal is not a court of preliminary jurisdiction and exercise of jurisdiction is controlled and limited by statute creating it and it can only entertain an election petitioner on the ground as specified in the statute is concerned, there is no quarrel to the said proposition of law. However, there is a distinguishable feature appearing in the present case at hand that Rule 36 does not specify or limit any ground which can be taken for the purposes of filing of an election petition. However, the words employed in Rule 36 of 1994 Rules itself provides for “ground or grounds” meaning thereby that all the grounds are available to be taken in order to question the elections. So far as the judgment in Charan Lal Sahu v. Giani Zail Singh and another; 1984 (1) SCC 390 is concerned, the same also reiterates the law laid down in Jyoti Basu and others (supra), however, the same may not be of any aid or assistance to the petitioner, particularly when there is nothing in the 1994 Rules restricting or limiting certain grounds. Now comes the judgment of Punjab and Haryana High Court in Smt. Guddi Devi v. The State Election Commissioner, Haryana and others; AIR 1995 P & H 101 in which the provisions of Section 176(4) of the Haryana Pancyati Raj Act,1994 came to be considered. The same for ready reference is quoted hereinunder: “(4) (a) If on the holding such inquiry the civil court finds that a candidate has, for the purpose of election committed a corrupt practice within the meaning of sub-section (5) he shall set aside the election and declare the candidate disqualified for the purpose of election and fresh election may be held. [(aa) If on holding such enquiry the Civil Court finds that- (i) on the date of his election a returned candidate was not qualified to be elected; (ii) any nomination has been improperly rejected; or (iii) the result of the election, in so far it concerns a returned candidate, has been materially affected by improper acceptance of any nomination or by any corrupt practice committed in the interest of the returned candidate by an agent other than his election agent or by the improper reception, refusal or rejection of any vote or the reception of any vote which is void or by any non-compliance with or violation of the provisions of the Constitution of India or of this Act, or any rules or orders made under this Act, election of such returned candidate shall be set aside and fresh election may be held.;] (b) If, in any case to which 2[clause (a) or clause (aa)] does not apply, the validity of an election is in dispute between two or more candidates, the court shall after a scrutiny and computation of the votes recorded in favour of each candidate, declare the candidate who is found to have the largest number of valid votes in his favour, to have been duty elected : Provided that after such computation, if any, equality of votes is found to exist between any candidate and the addition of one vote will entitle any of the candidate to be declared elected, one additional vote shall be added to the total number of valid votes found to have been received in the favour of such candidate or candidates, as the case may be, elected by lot drawn in the presence of the judge in such manner as he may determine. (Section 176(4)(aa)(i)(ii)(iii) came to be inserted by H.N. No. 17 of 2001.)”
33. Perusal of Section 176(4) of the 1994 Act prior to its amendment, provided the specific grounds for challenge to be raised in the election petition, wherein the grounds were confined to corrupt practices within the meaning of subsection (5) of Section 176 of the Act amongst others. However, there was no ground available relatable to filing of an election petition against any nomination being improperly rejected. Post amendment which was inserted by H.A. No. 17 of 2001 grounds (i) (ii) (iii) of Clause (aa) came to be inserted in subsection (4) of Section 176 of the Act whereby against the rejection of nomination, the election petition was made maintainable.
34. Though in Guddi Devi (supra), the Division Bench of the Punjab and Haryana High Court came to the conclusion that merely because neither under the Act nor under the Rules framed any remedy had been provided against illegal rejection or illegal acceptance of the nomination paper by way of election petition, however, it would not be a bar for the party for taking the said ground in election petition while challenging the validity of the election at a subsequent stage to the declaration of the result. The correctness of the decision in Guddi Devi (supra) was doubted and in Anju v. Addl. Civil Judge (Sr. Division) Pehowa and others; CWP No. 15310 of 1996, decided on 12.03.1998, while relying upon the judgment in Jyoti Basu and other (supra) and others judgments, it was laid down that in Guddi Devi (supra) is not a good law while observing as under: “10. We find support in our view from the authority of the apex Court in N. P. Ponnuswami v. The Returning Officer, Namakkal Constituency, Namakkal, Salem Distt., AIR 1952 SC 64 wherein it was observed that rejection or acceptance of nomination papers is included in the term ‘election’. We find further support in our view from the authority of the apex Court in Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233 wherein on the basis of the authority in N. P. Ponnuswami‘s case (supra), it was held that the word ‘election’ in Article 329(b) was used in a comprehensive sense as including the entire process of election commencing with the issue of a notification and terminating with the declaration of election of a candidate and that an application under Article 226 challenging the validity of any of the acts forming part of that process would be barred. These are instances of original proceedings calling in question an election, and would be within the prohibition enacted in Article 329(b).” 11. It is true that under sub-section (4) of Section 176 of the Act it is provided that the election shall be set aside for committing corrupt practice within the meaning of subsection (5), However, we are of the firm view that the provision of sub-section (4)(a) for setting aside the election of a candidate on the basis of corrupt practice within the meaning of sub-section (5) cannot in any manner be interpreted to mean that only ground for setting aside the election would be on the basis of corrupt practice and not on the basis of illegal rejection or acceptance or nomination papers of a candidate or illegalities or irregularities committed in preparation of electoral rolls and all such matters connected with the conduct of the election process right from its very beginning up to its final culmination with the declaration of the election results. Mere fact that neither under the Act nor under the Rules framed by the Stale Legislature any remedy has been provided against illegal rejection or illegal acceptance of nomination papers or illegalities or irregularities committed in preparation of the electoral rolls before the culmination of the election process in our view would not in any manner debar the affected party from taking up all such objections in the election petition while challenging the validity of election at a stage subsequent to the declaration of the election results. Rather such an interpretation which we have taken is in consonance with the prime object of completing the entire election process expeditiously, and without any undue delay and would certainly be helpful in holding the election process according to the schedule. The mistakes, irregularities or illegalities committed in the election process can certainly be rectified at a later stage when the affected party approaches the competent authority by way of election petition.”
35. Though the learned counsel for the petitioner has heavily relied upon the judgment in Anju (supra) but the said judgment is distinguishable, particularly, when Rule 36 of the 1994 Rules does not provide any specific ground on which an election petition can be filed. Thus, by virtue of a judicial fiat, this Court cannot curtail any ground, once it was never the intention of the rule making authority.
36. Thus, it can be safely said that an election petition is maintainable against the improper rejection of the nomination paper and to the said extent, the order under challenge of the Election Tribunal cannot be faulted.
37. The next question which needs to be addressed is whether the election petitioner, proposer and seconder were denied opportunity attest to the photographs appended on the nomination form while according opportunity to do so to the returned candidate and also the consequences of non-attestation in the light of the circular of the State Election Commission dated 05.07.2021. Both the questions are interwoven are each other, thus, they are being taken together.
38. Apparently, the allegation of the election petitioner is that along with the proposer and the seconder was present at the time of filing of the nomination and scrutiny. It is also alleged that the petitioner/ returned candidate had also not got the photograph appended on the nomination form attested but opportunity was accorded to the returned candidate/ writ petitioner to rectify the said defect and the writ petitioner/ returned candidate, its proposer and seconder got the self-attestation done but the same was denied to the election petitioner and in the order impugned, it is recorded that the election petitioner, proposer and seconder were present and when the election petitioner asked requested accorded opportunity to self-attest the photograph on the nomination form, the same was refused.
39. In para-6 of the writ petition, the following has been averred: “6. That after scrutiny of Nomination Papers under Rule 11 of the Rules, 1994, the nomination of the respondent no. 6 (Smt. Babli W/O- Mem Singh) and Kavita W/O- Vikas Kumar of Village Dabkaula was rejected due to non-compliance of the endition no. 6(A) of the Directive issued State Election Commission, U.P., Lucknow vide Letter No. 4169/Ra.Ni.Aa.-3/P.Ni./53-21/2021 dated 25.07.2021. Due to rejection of their nomination, respondent no. 6 and Kavita raised objection that their nomination paper can not be rejected. Assistant Returning Officer/ District Cane Officer, Saharanpur wrote a letter vide dated 09.07.2021 to District Election Officer, Saharanpur apprising all the relevant facts and legal position and found that complaint raised by respondent no. 6 and Kavita has no force as their nomination was rejected due to incomplete nomination paper which was not corrected by them. The copy of the letter dated 09.07.2021 written by Assistant Election Officer, Saharanpur to District Election Officer, Saharanpur and State Election commission, U.P., Lucknow letter dated 05.07.2021 are being annexed as Annexure No. 3 and Annexure No. 4 respectively to this writ petition.”
40. In support of the same, Annexure-3 page 51 happens to be a communication of the District Cane Officer, Saharanpur/ Assistant Election Officer, Gangoh addressed to the District Election Officer, Saharanpur, according to which, despite opportunity being accorded to the Election petitioner/ sixth respondent to do the needful for getting the self-attestation done in the photograph appended to the application form, the election petitioner/ sixth respondent did not make any attempt to get the self-attestation done. Para-6 of the writ petition has not been specifically denied in pleadings by way of a counter affidavit by the sixth respondent. The communication dated 09-07-2021 has been given a Paper No. being 25-C/12. Basically, the objection of the election petitioner/ respondent no. 6 is that the said communication is of Assistant Election Officer, Gangoh, though addressed to District Election Officer and not a communication of Election Officer or of a Returning Officer, thus, it has got no legal sanctity and it cannot be relied upon.
41. The relevant extract of communication of the District Cane Officer/ Assistant Election Officer, Gangoh addressed to District Election Officer, Saharanpur dated 09.07.2021 is quoted hereinunder: “???? ?? ??????? ??? ???? ????? ?? ?? ??????? ???? ????? ??????? ????? ????? ?? ?????? ?????? ??????? ?????? ?? ??? ?? ??? ??? ??????? ???? ????? ???? ??? ???? ?? ??????? ???? ?? ??? ?? ??????????? ?? ?????? ????? ???????? ????, ?.???. ?? ???? ?????? 4169/??.??.?.-3/?.??./53-21/2021 ?????? 05.0.7.2021 ?? ??????? 6 (?) ??? ???? ??? ????????????? ????????? ??? ???? ????????? ? ??????? ?????? ??????? ???? ?? ????? ???? ??? ????????? ??????????? ??? ???? ??? ?? ???? ??????????? ?? 3.00 ??? ?? ???????? ???? ?? ???? ??? ?????? ???? ????? ??????? ?? ?????? ?? ??????? ???? ?? ???? ????? ?? ???? ??? ????????? ???? ?????? ????? ??? ???? ???? ???? ???????? ??????? ???? ???? ?????? ???????? ??????? ??? ???? ????? ??????? ?????? 98 ?? ???? ???? ?? ??? ?? ??????? ???? ?? ??????? ???? ????? ??????? ???? ???? ??????? ???? ?? ??????? ?? ?? ?????? ?? ?? ????? ????? ??? ??? ???????? ?????? ?????????? ????? ?? ?? ?????? ?? ????? ??? ?????? ??????????? ?? ?????? ???? ??????? ??? ???? ???? ??? ?? ?????? ?? ???? ?? ??? ?????? ???”
42. Apart from the same, the Court finds that there happens to be a written argument submitted by the State, Annexure-7, page-99. Reference whereof has been given in para-9 of the petition, which reads as under: “9.That in this election petition, Opposite Party No. 1 to 3 have also filed written arguments (33A) before the respondent no. 2 vide dated 15.02.2022. The copy of the written arguments filed on behalf of Opposite Party No. 1 to 3 vide dated 15.02.2022 is being annexed as Annexure No. 7 to this writ petition.”
43. The relevant extract of the written submissions of defendant nos. 1 and 3 in the elections and respondent nos. 1 and 3/ State of Uttar Pradesh through connector and Election Officer/ DCO Bhawan Cane, Saharanpur dated 15.02.2022 is quoted hereinunder: “??? ???????? ???? ??? ?? ???? ?? ??? ???? ???? ?? ?????? ???? ?? ????????? ?? ?????? ??? ???? ?? ??? ??? ??? ?? ???? ?????? ???? ?????? ?? ???? ?? 3.00 ??? ?? ???????? ???? ?? ???? ??? ?? ?????? ???? ?????? ???? ?????? ?? ???? ?????? ?? ?? ??? ????????? ???? ???????? ?? ??? ???? ??? ?? ?? ?? ??????? ?????? ?? ??? ???? ???? ??? ?? ????????? ???? ? ???? ?? ??? ???????? ???? ??????????? ???? ?? ???? ?? ?????? ???? ??? ?????? ???? ??? ????? ??????? ???? ?? ??? ?? ???? ?? ?????? ??? ??? ???? ?? ?? ?? ???? ????????? ??? 1 ?? 3 ?? ??????? ????? ?? ?? ??????? ??? ?????????? ?? ??? ???? ?? ?? ??? ???? ???? ????? ?? ????????? ??? 1 ?? 3 ?? ?? ?? ????? ?? ??? ?????? ?? ????? ???? ??? ???? ?? ??????? ????????? ???? ?? ?????? ???????? ??? ????”
44. In the said written argument, the State had come up with a stand that despite opportunity being accorded to the election petitioner/ respondent no. 6/ Smt. Babli to get the self-attestation done and to rectify the error but nothing was done at the end of the election petitioner/ sixth respondent. The written submission was given a Number 33-A. However, Election Tribunal has referred to the said documents but has not considered the same.
45. Certainly, Rule 8 of the 1994 Rules provides for nomination wherein who desires to be nominated as the candidate as to deliver in person or through proposer and seconder, nomination paper duly filled in Form-II to the Returning Officer within the hours of 11 o’clock in the forenoon and 3’O clock in the afternoon on that date and the place specified in under Rule 6, and the nomination paper is to be signed by the candidate and attested himself as assenting to the nomination and also by one member as proposer and other member as seconder. Rule 6 speaks about scrutiny of nomination, according to which, at the scrutiny of the nomination, the candidates, their proposer and seconders are to be present. The returning officer is to examine the papers and decide all objections and after summary inquiry, he has the power to reject on several grounds as apparent from sub-clause (a) to (g) of sub-rule (2) of Rule 11. Sub-rule (4) of Rule 11 of the 1994 Rules goes to show that the returning offier shall not reject any nomination paper on the ground of any technical defect or other error which is not of substantial character and may for the purposes of removing any such defect or error, allow entry to be correct in the nomination paper including entry relating to name and number on the Election Roll.
46. Pertinently, sub-clause (d) of sub-rule (2) of Rule 11 of the 1994 Rules provides that one of the ground amongst others for rejection of the nomination is that the signature of the candidate or the proposer or seconder is not genuine or has been obtained by fraud.
47. Here, it is none of the case of the parties that the signature of the candidate, proposer or seconder was not genuine and had been obtained by fraud. Sub-rule (4) of Rule 11 of the 1994 Rules enjoins the returning officer not to reject nomination paper on the ground of any technical defect or of error which is not substantial character. Then comes the circular of the State Election Commission dated 05-07-2021, Clause 6-(a) itself shows that there has to be a signature of the candidate, proposer and seconder over the photographs so appended to the nomination form. No provisions either in the Act, Rule or in the circular as referred to above has been placed before this Court for rejection of the nomination on the ground that on absence of self-attestation of the photograph on the nomination paper of the candidate, proposer and seconder, thus, it can be very well said that the extreme act of cancellation of nomination could not have been done.
48. However, the entire thing boils upon the fact that whether opportunity was accorded to the election petitioner/ sixth respondent, Smt. Babli to get the self-attestation done on the photograph appended to the nomination paper or not in the wake of the fact that discrimination has been alleged by her. As already noticed two crucial documents, one being the communication dated 09.07.2021 of the Assistant Election Commissioner, Gangoh/ District Cane Officer addressed to District Election Officer and the second, the written arguments submitted by the State before the Election Tribunal reciting therein that despite opportunity being accorded to the election petitioner/ sixth respondent/ Smt. Babli to get the attestation done of the photograph appended on the nomination form, the same was not done.
49. Since the aforesaid documents which goes to the root of the matter has not been considered though it was available before the Election Tribunal in view of the Registration of the paper number to the said documents, thus, in the opinion of the Court, the matter needs to be remitted back to the Election Tribunal to pass a fresh order after considering both the said documents.
50. Accordingly, the writ petition is being partly allowed.
51. The order dated 20.09.2023 is passed by the District Judge/ Election Tribunal, Saharanpur in Election Petition No. 217 of 2021 is set aside.
52. Matter stand remitted back to the Election Tribunal to pass a fresh orders within a period of two months from the date of presentation of the certified copy of the order.
(Vikas Budhwar,J.)
May 26, 2026
Ashu
Â
Â
