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AMRENDRA SINGH versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Amrendra Singh v. State Of U.P. & Others - WRIT - C No. 63643 of 2005 [2005] RD-AH 4550 (21 October 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

RESERVED ON  04.10.2005

DELIVERED ON 21.10.2005

Civil Misc. Writ Petition No. 63643  of   2005

Amrendra Singh................................................................Petitioner

Versus

State of U.P. and others...............................................Respondents

................

Hon'ble Ashok Bhushan, J.

Heard counsel for the petitioner, learned counsel appearing for the respondent No. 5 ,  Sri P.N. Rai learned standing counsel appearing for the respondent no. 4 and learned standing counsel.

By this writ petition the petitioner has prayed for quashing the order dated 22.9.2005 (Annexure-2 to the writ petition )  passed by the respondent no. 4 .  A writ of mandamus has also been prayed directing the respondent not to interfere in peaceful functioning of the petitioner as village Pradhan.

Brief facts necessary for deciding this writ petition are;

Petitioner contested the election of Gram Pradhan of village Murdhawa, in which he was declared elected on 28th August, 2005.  The State Election Commission passed an order dated 22.9.2005 holding that the petitioner Amrendra Singh could not contest the election of the office of Pradhan because he stood disqualified on account of his conviction dated 13.6.1997 passed in Session Trial No. 43 of 1993 under Section 20 of the  Narcotic Drugs and Psychotropic Substances Act, 1985 and was sentenced  to undergo three years' rigorous imprisonment and fine of Rs. 5000/-.   The Election Commission countermanded the election of the petitioner in consequence of which steps for fresh election of the office of Pradhan have been initiated.

Sri Ashwani Misra, learned counsel for the petitioner in support of the writ petition raised following submissions :-

(1)The petitioner is not disqualified within the meaning of Section 5-A of the  U.P. Pranchayat Raj Act, 1947.  The conviction dated 13.6.1997 has still not started. The disqualification has not yet started running. The petitioner had not yet undergone  the sentence in accordance with the conviction order dated 13.6.1997. The execution of conviction dated 13.6.1997 is suspended in appeal filed by the petitioner in this Court, which appeal is pending. In alternative the disqualification period shall be counted from 13.6.1997 and taking into period of conviction of three years and bar of disqualification of five years shall operate only upto 13.6.2005 whereas the petitioner has filed nomination on 6.8.2005 hence the disqualification, if any, came to an end.

(2)The disqualification of the petitioner on the strength of the conviction shall stand  removed in accordance with  rules namely the U.P. Panchayat Raj (Computation of Period of Five Years For Removal of Disqualification, Fixation of Period of Dues etc. and Settlement of Disputes of Disqualification) Rules, 1994.

(3)The question of disqualification of the petitioner to contest the election could have been raised only in election petition filed u/s 12-C of the U.P. Pranchayat Raj Act, 1947.  The question  of disqualification can also be decided in accordance  with Section 6-A by the Prescribed Authority and it is only the Prescribed Authority   who can decide the question of disqualification as per Section 6-A of the U.P. Pranchayat Raj Act, 1947.

(4)Article 243-O of the Constitution of India bars the jurisdiction of the courts in the matter of election of Panchayat.

(5)After the petitioner having been declared elected as Pradhan of the Gaon Sabha  the  State Election Commission had no jurisdiction to cancel the election of the petitioner.  Reliance has been placed by the counsel for the petitioner on three Division Bench judgements of this Court i.e. 1995 A.W.C. 1465  Smt. Ram Kanti  Versus   District Magistrate and others; 2000(4) A.W.C. 2777  Shambhu Singh Versus   State Election Commission, U. P.  & others;  and the judgment dated 7.8.2000 passed in writ petition No. 32421 of 2000 Smt. Shyam Sakhi and others  Versus The State Election Commission and others.

Learned counsel appearing for the respondent no. 5 contended that the petitioner having been convicted by criminal court for a period of three years  is disqualified  as per Section 5-A (K) of the U.P. Pranchayat Raj Act, 1947 and he could not have been elected  as Pradhan nor could function as Pradhan.  The disqualification on the basis of conviction of the petitioner shall come into operation from the date of conviction and filing of appeal in this Court against the conviction order or stay of execution of sentence shall not revoke the disqualification.  Reliance has been placed on the constitutional Bench judgment of the apex Court  reported in (2005) 1 Supreme Court Cases 754  K. Prabhakaran  Versus  P. Jayarajan.   Petitioner being inherently disqualified  from contesting the election even if the State Election Commission  had no jurisdiction to set aside the election, this Court shall not exercise discretion in favour of the writ petitioner by quashing    the order of the State Election Commission  by which substantial  justice has been done.  This is not a fit case for exercise of discretion by this Court in its equitable jurisdiction.

Learned counsel appearing for the respondent no. 4 submitted that the State Election Commission  had jurisdiction to pass the impugned order. Reliance has been placed by the learned on Article 243 (k) of the Constitution of India.  

I have considered the submissions raised by counsel for the parties and perused the record.

The first three submissions being inter related , are considered together. The submission of counsel for the petitioner is that the petitioner is not disqualified  on the strength of his conviction dated 13.6.1997. A copy of the conviction order dated 13.6.1997 has been filed by the petitioner as Annexure S.A.2  to the Supplementary Affidavit which is a judgment  of the Special Judge, Sonbhadra  in Session Trial No. 43 of 1993.  By the judgment dated 13.6.1997 the petitioner has been convicted  under Section 20 of the Narcotic Drugs and Psychotropic Substances Act  and  sentenced to three years rigorous imprisonment and a fine of Rs. 5000/-.  In default of payment of fine the petitioner shall undergo further period of six months' rigorous imprisonment.  Learned counsel for the petitioner  has submitted that the fine in pursuance of the judgment  after the conviction has already been deposited. He further submitted that against the judgment of conviction an appeal No. 1272 of 1997  has been filed by the petitioner which has been admitted on 28.7.1997 and bail has also been granted. A photostat copy of the order dated 28.7.1997 has been produced by the learned counsel for the petitioner which order reads as follows :-

"Admit.

Let the appellant Amrendra Singh Kurmi s/o late Tara Chandra Singh be released  on bail in S.T. No. 43 of 1993 under Section 20 of N. D. P. S. Act on his furnishing two sureties and a personal bond in the like amount to the satisfaction of the Chief Judicial Magistrate, Sonbhadra.

                           28.7.97"

Section 5-A of the U.P. Pranchayat Raj Act, 1947 provides for disqualification for being chosen as Pradhan or a member of the Gram Panchayat. The relevant portion of Section 5-A so far as is relevant in the present case is quoted below :-

5-A. Disqualification for membership,____  A person shall be disqualified for being chosen as, and for being (the Pradhan or ) a member of Gram Panchayat, if he______                   (a).....................................

(b).....................................

(c).....................................

(d)......................................

(e).............................. ........

(f).........................................

(g).........................................

(h)........................................

(i)..........................................

(j)...........................................

(k) has been convicted of an offence under the Narcotic Drugs and Psychotropic  Substances Act, 1985;

(l)........................................

(m)......................................

(n)......................................

Provided that the period of disqualification under clause (d), (f), (g), (h), (i), (j), (k), (l) or (m) shall be five years from such date as may be prescribed;

Provided further that the disqualification under clause (e) 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 classes referred to in the first proviso may, in the manner prescribed, be removed by the State Government."

According to Section 5-A disqualification is attached on a person who has been convicted  of an offence under the N.D.P.S. Act,  1985.    The petitioner has been convicted by the judgment dated 13.6.1997 under the above 1985 Act for a period of three years.  The  petitioner's submission is  that the conviction has not started since the appeal against the said judgment  has been admitted and the petitioner (appellant) has been granted bail.  The constitutional Bench  of the apex Court in the case of  K. Prabhakaran  Versus  P. Jayarajan  (supra)  has settled the controversy.  The constitution Bench while interpreting  sub section (3) of Section 8 of the Representation of People Act, held that the period of disqualification commences from the date of conviction whether or not  the person has been taken into custody to undergo sentence of imprisonment.  It has further been held that the person cannot escape the effect  of disqualification merely because he was not taken into custody or taken on bail or was absconding.  Following has been laid down by  the apex Court in paragraph 47 :-  

"47. ....................Under sub-section (3) of Section 8 of R.P.A.  The period  of disqualification commences from the date of such conviction.  The disqualification continues  to operate for a further period of six years  calculated from the date of his release from imprisonment.  Thus, the disqualification commences  from the date of conviction whether or not the person has been taken into custody to undergo the sentence of imprisonment .  He cannot escape  the effect of disqualification merely because he has not been taken into custody because he was on bail or was absconding.  Once taken into custody he shall remain disqualified during the period of imprisonment .  On the date of his release would commence the period of continued disqualification for a further period of six years.  It is clear from a bare reading of sub-section (3) of Section 8 of R.P.A.  That the actual period of imprisonment is relevant.   The provisions of Section 8 of the Representation of the People Act, 1951 have to be construed in harmony with the provisions of the Code of Criminal procedure, 1973 and in such manner as to give effect to the provisions contained in both the legislations."

Thus  the mere fact  that an appeal has been filed by the petitioner against his conviction which has been admitted and he has been released on bail, does not  wipe out the disqualification which has been attached  on the strength of conviction dated 13.6.1997.  The submission of the petitioner that the conviction has not yet started since the petitioner is on bail  has also to be repelled in view of the clear pronouncement of the apex Court as quoted above.  The mere fact that  the petitioner has not yet served his sentence he cannot be heard in saying  that he is not disqualified.

The submission of the petitioner that the disqualification, if any, stand removed in view of the U.P. Panchayat Raj Act  so the Uttar Pradesh Panchayat Raj (Computation of Period of Five Years For Removal of Disqualification, Fixation of Period of Dues etc. and Settlement of Disputes of Disqualification ) Rules, 1994 is to be considered now.   Rule 3 of the said Rules pertains to computation of period of five years which is quoted as below :-

"3. Computation of period of five years,_____  The date from which the period of five years for removal disqualification under clauses (d), (f), (g),(h), (i), (j), (k), (l) or (m) of Section 5-A of the Act shall be computed will be as follows :-

(a) For clause (d), from the date of dismissal;

(b) For clause (f) from the date on which the insolvent is discharged;

(c) For clauses (g), (h), (i), (j), (k), (l) or (m);

(i) In case of sentence of imprisonment, from the date of expiry of the period of sentence;

(ii) In  the case pf sentence of   fine, from the date of payment or recovery thereof;

(iii)In the case of sentence or  both imprisonment and fine, from the date of expiry sentence, or payment       or recovery of fine, whichever is later. "

The petitioner has been sentenced with both imprisonment and fine.   The counsel for the petitioner has submitted that the  fine has already been deposited hence the period of five years shall start  running from the deposit of fine.   The rule 3 (c) (III) clearly  mentions  that the date from which the period of five years for removal of disqualification  shall be computed  is the date of expiry of sentence or payment of fine whichever is later.  Thus the period shall begin on expiry of sentence . The petitioner has not yet undergone the sentence of imprisonment of three years nor the petitioner's conviction  has yet been set aside.  Thus according to rule 3 of the Uttar Pradesh Panchayat Raj (Computation of Period of Five Years For Removal of Disqualification, Fixation of Period of Dues etc. and Settlement of Disputes of Disqualification ) Rules, 1994 the date from which period of five years for removal of disqualification has to be computed  has not yet begun.  Thus there is no question of removal of disqualification in the present case attached to the petitioner on the basis of conviction dated 13.6.1997.  Thus it is held that the disqualification  attached to the petitioner  on the strength of conviction by virtue of rule 5-A (k) of the Act has not yet been removed and the petitioner continues to be disqualified for being elected  as Pradhan of the Gaon Sabha.   At  this juncture it is also relevant  to note the submission of the petitioner on the strength Section 6-A of the U.P. Panchayat Raj Act.  Section 6-A is extracted below :-

"6-A. Decision on question as to disqualification ________ If any question  arises at to whether a person has  become subject to any disqualification mentioned in Section 5-A or in sub-section  (1) of Section 6, the question shall  be referred  to the prescribed authority for his decision and his decision shall, subject to the result of any appeal as may be prescribed, be final."

The above provision require that the question whether  a person has become subject to any disqualification if arises, the said question shall be ref erred to the prescribed authority for his decision.  Section 6-A uses the phrase  whether a person has become subject to any disqualification.  The above words clearly indicate a stage anterior to election.  The word "has become" denotes that such disqualification has been acquired  anterior to election.  In the present case the disqualification  of the petitioner was at the time of filing of the nomination hence Section 6-A has no application in the facts of the present case.    There cannot be any dispute to the contention of the petitioner's counsel that in an election petition  filed under Section 12-C of the U.P. Panchayat Raj Act, the question of disqualification of the petitioner can be gone into.  

From the above discussion it is  thus clear that the petitioner was disqualified  for being chosen as Gram Pradhan by virtue of he being convicted  under the judgment dated 13.6.1997 which disqualification  has not yet been removed according to the Uttar Pradesh Panchayat Raj (Computation of Period of Five Years For Removal of Disqualification, Fixation of Period of Dues etc. and Settlement of Disputes of Disqualification ) Rules, 1994.

Now comes the  last two submissions of the counsel for the petitioner.  The submission  of the petitioner is that Article 243-O of the Constitution of India bars challenge of election except in accordance with the manner provided by an  election petition presented to such authority  and in such manner as is provided by the State Legislature.  The submission further is that the State Election Commission had no jurisdiction to pass the impugned order.   This writ petition has been filed challenging the order of State Election Commission.  The bar of Article 243-O as is clear from the heading of the Section is " Bar to interference by courts in electoral matters".  Thus the above provisions bars decision of courts in matters of election.  This writ petition is challenging  the order of the State Election Commission hence the bar of Article 243-O cannot be pressed in for entertaining the writ petition.  In the case of Smt. Ram Kanti  Versus   District Magistrate and others; (supra)  the question of bar of Article 243-O of the Constitution of India was considered  and it was held that the said bar does not come in entertaining  the writ petition against the order passed by the  State Election Commission.  Following was held in paragraph 12 of the judgment  :-  

"12.   It is true that Article 243-O of the Constitution  bars the jurisdiction of the court in the matter of election of Panchayats, but after the election process has come to an end and what is challenged by means of writ petition is not the election but the order of the  State Election Commissioner , District Magistrate or the Election officer canceling the poll/declaration  of the result and directing for repoll or recounting after a candidate has been duly declared elected, writ petition cannot be barred.  In such a case, Article 243-O of the Constitution  is not attracted.  In this connection reference may again  be made to the case of Mohinder Singh Gill  v. Chief Election Commissioner (supra ), wherein the bar created by Article 329 (b) of the Constitution was confined to "litigative challenges of electoral steps taken by the Election Commission and its officer for carrying forward the process of election to its culmination  in the formal declaration of the result".   Similarly Article 243-O of the Constitution bars the jurisdiction of this court so far as the election and the steps taken in connection  therewith are concerned,  but after the election is over, if any order is passed by the Election Commissioner or any other Officer affecting the election, which has already been completed, writ petition  against such an order under Article 226 of the Constitution can be entertained.  In such a case no election is called in question."

Thus the bar of Article 243-O does not come in entertaining this writ petition which has been filed against the order of  State Election Commission.

The question next to be considered is as to whether the  State Election Commission had any jurisdiction to set aside the election of a person who has already been declared elected as Pradhan.  All the three cases relied by the counsel for the petitioner  fully support the submission raised by the counsel for the petitioner that after the declaration of the result  State Election Commission had no jurisdiction.  All the three Division Bench's judgments namely Smt. Ram Kanti  Versus   District Magistrate and others (supra), Shambhu Singh Versus   State Election Commission, U. P.  & others  (supra) and the case of  Smt. Shyam Sakhi and others  Versus The State Election Commission and others (supra ) have held that after the declaration of the result the  State Election Commission had no jurisdiction  to interfere with the result of the election as declared.

Now comes to the crucial point in this case as to whether in view of what has been found above, the petitioner is entitled for relief by this Court in exercise of its discretionary jurisdiction.   Section 5-A of the Act provides that a person shall be disqualified  from being chosen as,  and for being the Pradhan or a member of  Gram Panchayat if he is disqualified.  Section mandates both i.e. that  person shall be disqualified for being chosen as, and for being the Pradhan and as held above, the petitioner  is clearly disqualified  for being chosen as Pradhan on the strength of conviction  by criminal court and consequence of quashing the order of the  State Election Commission would  be to restore a person  who  is found to be disqualified  on the office of Pradhan  whereas a disqualified person  can neither be chosen  nor can be allowed to continue on the office of Pradhan.  Although it has been found that the  State Election Commission has no jurisdiction to interfere  with the election  but in view of the finding  that the petitioner is disqualified I am not inclined to exercise discretion in favour of the writ petitioner by granting relief to the petitioner as prayed for.  Election process for holding fresh election of the office of Pradhan has already begun as stated in the supplementary affidavit filed by the petitioner in the writ petition.

Taking into consideration the entire facts and circumstances of the case, the petitioner is not entitled for the reliefs as claimed in the writ petition.  This Court, in the facts and circumstances of the present case,  refuses to exercise  its discretionary jurisdiction in favour of the petitioner.  The writ petition is accordingly dismissed.

D/-21.10.2005

SCS


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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