Maya Devi Vs. Ratni & Ors.
EmailAppeal: Civil Appeal No. 8332 of 2001
(Arising out of Special Leave Petition (C) No. 10303 of 2001)
(Arising out of Special Leave Petition (C) No. 10303 of 2001)
Petitioner: Maya Devi
Respondent: Ratni & Ors.
Apeal: Civil Appeal No. 8332 of 2001
(Arising out of Special Leave Petition (C) No. 10303 of 2001)
(Arising out of Special Leave Petition (C) No. 10303 of 2001)
Judges: R.C. LAHOTI & BRIJESH KUMAR, JJ.
Date of Judgment: Dec 05, 2001
Head Note:
PANCHAYATS
Haryana Panchayati Raj Rules, 1994
Rule 59(2) with Haryana Panchayati Raj Act, 1994 – Section 176 (as amended by Haryana Panchayati Raj (Amendment) Ordinance, 2001) with retrospective effect and Constitution – Articles 226, 243-O – Election to post of Sarpanch – Writ petition in High Court. Held, writ not maintainable in view of retrospective amendment. Writ petitioner allowed to withdraw writ and file election petition within 15 days. (Para 4 to 6)
Haryana Panchayati Raj Rules, 1994
Rule 59(2) with Haryana Panchayati Raj Act, 1994 – Section 176 (as amended by Haryana Panchayati Raj (Amendment) Ordinance, 2001) with retrospective effect and Constitution – Articles 226, 243-O – Election to post of Sarpanch – Writ petition in High Court. Held, writ not maintainable in view of retrospective amendment. Writ petitioner allowed to withdraw writ and file election petition within 15 days. (Para 4 to 6)
JUDGEMENT:
Order
1. Leave granted.
2. Gram Panchayat elections were held in village Ranila, Tehsil Charkhi Dadri, District Bhiwani (Haryana). The office of sarpanch of Ranila Gram Panchayat was reserved for ‘women’. The appellant and the respondent. no. 1, besides other six candidates, contested the election for the post of sarpanch. It appears that at about 4.00 PM, there was a disturbance at polling booth numbers 627 and 630 whereupon the polling was adjourned to 15th March, 2000 and such of the voters as were present but were prevented from exercising their franchise, were issued voting slips. On 15.03.2000, only such of the voters as were present at polling booth nos. 627 and 630 and were also issued with voting slips, were allowed to cast their ballots. Such other voters’ as were registered in the voters list and had not exercised their voting right on 12.03.2000 but were not issued with voting slips were not permitted to cast their ballots on 15.03.2000. The result of the election was declared on 15.03.2000. The appellant was declared elected. The counting had commenced on 12.03.2000 and by the time additional ballots were cast on 15.03.2000 at booth nos. 627 and 630, the result of the election was almost known to everybody, though not officially announced. On 24.06.2000, respondent no. 1 filed a writ petition under Article 226 of the Constitution, putting in issue the election of the appellant and seeking quashing of the result of the election. Although an objection to the maintainability of the petition under Article 226 of the Constitution before the High Court was raised in the counter affidavit filed by the appellant, however, the High Court proceeded to decide the writ petition on merits and having formed an opinion that rule 59(2) of Haryana Panchayati Raj Rules, 1994 was violated, allowed the writ petition and set aside the election of the appellant. Aggrieved by that decision of the High Court, the appellant has filed this appeal by special leave.
3. The principal plea raised by the appellant is that in view of the provisions contained in Article 243-0 of the Constitution of India, the jurisdiction of the High Court or any other court to entertain a dispute laying challenge to election to any panchayat has been taken away and the only remedy available is to file an election petition to such authority and in such manner as is provided for by or under any law made by the legislature of state and in view of the bar enacted by the Constitution of India, the High Court was not justified in entertaining the writ petition. It was further pointed out that section 176 of the Haryana Panchayati Raj Act, 1994 provides the remedy of filing an election petition and also makes provision for the grounds on which a civil court may set aside an election. Learned counsel for respondent no. 1 submitted that section 176 abovesaid, contemplates only a limited category of cases in which an election petition may be filed and entertained, and, therefore, the ground on which the writ petition was filed before the High Court being not one falling within the net of section 176, the writ petition was maintainable and was rightly entertained and decided on merits by the High Court.
4. During the course of hearing, the learned counsel for the Election Commission brought to our notice the Haryana Panchayati Raj (Amendment) Ordinance, 2001 (Ordinance No. 2 of 2001) promulgated on 5th October, 2001 but given a retrospective effect from 1st day of March, 2000 whereby section 176 of the Act has been amended. The scope of grounds for filing an election petition has been enlarged and it is now specifically provided that noncompliance with or violation of any rules made under the Act can be ground for filing an election petition. The writ petitioner’s case falls within the purview of sub-clause (iii) of clause (aa) of sub-section (4) of section 176 of the Act. In view of the retrospective applicability given to the ordinance, the remedy of filing writ petition stands excluded and the only remedy available to the respondent no. 1 was, and is, to have filed an election petitions under section 176.
5. Faced with this situation, the learned counsel for respondent no.1 i.e, the writ petitioner before the High Court submitted that respondent no.1 was advised in filing the writ petition before the High Court as per the practice prevalent then and such writ petitions were being entertained by the High Court, as was done in the present case, and were being decided on merits. He further submitted that the law having been amended with retrospective effect, it would be fair to the respondent no. 1 and also serve the ends of justice if respondent no. 1 is permitted to withdraw the writ petition with the liberty of filing an election petition within the time permitted by this Court. We find merit in the prayer so made.
6. The writ petition filed by respondent no.1 before the High Court is dismissed as withdrawn. The impugned judgment of the High Court is also set aside. The respondent no. 1 is permitted to file an election petition under section 176 of the Act, within a period of 15 days, which, if filed, shall be heard and decided on merits and in accordance with law, influenced by the impugned decision of the High Court.
7. The appeal stands disposed of accordingly.
1. Leave granted.
2. Gram Panchayat elections were held in village Ranila, Tehsil Charkhi Dadri, District Bhiwani (Haryana). The office of sarpanch of Ranila Gram Panchayat was reserved for ‘women’. The appellant and the respondent. no. 1, besides other six candidates, contested the election for the post of sarpanch. It appears that at about 4.00 PM, there was a disturbance at polling booth numbers 627 and 630 whereupon the polling was adjourned to 15th March, 2000 and such of the voters as were present but were prevented from exercising their franchise, were issued voting slips. On 15.03.2000, only such of the voters as were present at polling booth nos. 627 and 630 and were also issued with voting slips, were allowed to cast their ballots. Such other voters’ as were registered in the voters list and had not exercised their voting right on 12.03.2000 but were not issued with voting slips were not permitted to cast their ballots on 15.03.2000. The result of the election was declared on 15.03.2000. The appellant was declared elected. The counting had commenced on 12.03.2000 and by the time additional ballots were cast on 15.03.2000 at booth nos. 627 and 630, the result of the election was almost known to everybody, though not officially announced. On 24.06.2000, respondent no. 1 filed a writ petition under Article 226 of the Constitution, putting in issue the election of the appellant and seeking quashing of the result of the election. Although an objection to the maintainability of the petition under Article 226 of the Constitution before the High Court was raised in the counter affidavit filed by the appellant, however, the High Court proceeded to decide the writ petition on merits and having formed an opinion that rule 59(2) of Haryana Panchayati Raj Rules, 1994 was violated, allowed the writ petition and set aside the election of the appellant. Aggrieved by that decision of the High Court, the appellant has filed this appeal by special leave.
3. The principal plea raised by the appellant is that in view of the provisions contained in Article 243-0 of the Constitution of India, the jurisdiction of the High Court or any other court to entertain a dispute laying challenge to election to any panchayat has been taken away and the only remedy available is to file an election petition to such authority and in such manner as is provided for by or under any law made by the legislature of state and in view of the bar enacted by the Constitution of India, the High Court was not justified in entertaining the writ petition. It was further pointed out that section 176 of the Haryana Panchayati Raj Act, 1994 provides the remedy of filing an election petition and also makes provision for the grounds on which a civil court may set aside an election. Learned counsel for respondent no. 1 submitted that section 176 abovesaid, contemplates only a limited category of cases in which an election petition may be filed and entertained, and, therefore, the ground on which the writ petition was filed before the High Court being not one falling within the net of section 176, the writ petition was maintainable and was rightly entertained and decided on merits by the High Court.
4. During the course of hearing, the learned counsel for the Election Commission brought to our notice the Haryana Panchayati Raj (Amendment) Ordinance, 2001 (Ordinance No. 2 of 2001) promulgated on 5th October, 2001 but given a retrospective effect from 1st day of March, 2000 whereby section 176 of the Act has been amended. The scope of grounds for filing an election petition has been enlarged and it is now specifically provided that noncompliance with or violation of any rules made under the Act can be ground for filing an election petition. The writ petitioner’s case falls within the purview of sub-clause (iii) of clause (aa) of sub-section (4) of section 176 of the Act. In view of the retrospective applicability given to the ordinance, the remedy of filing writ petition stands excluded and the only remedy available to the respondent no. 1 was, and is, to have filed an election petitions under section 176.
5. Faced with this situation, the learned counsel for respondent no.1 i.e, the writ petitioner before the High Court submitted that respondent no.1 was advised in filing the writ petition before the High Court as per the practice prevalent then and such writ petitions were being entertained by the High Court, as was done in the present case, and were being decided on merits. He further submitted that the law having been amended with retrospective effect, it would be fair to the respondent no. 1 and also serve the ends of justice if respondent no. 1 is permitted to withdraw the writ petition with the liberty of filing an election petition within the time permitted by this Court. We find merit in the prayer so made.
6. The writ petition filed by respondent no.1 before the High Court is dismissed as withdrawn. The impugned judgment of the High Court is also set aside. The respondent no. 1 is permitted to file an election petition under section 176 of the Act, within a period of 15 days, which, if filed, shall be heard and decided on merits and in accordance with law, influenced by the impugned decision of the High Court.
7. The appeal stands disposed of accordingly.
