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Om Prakash Vs. State of Haryana and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ Nos. 2690, 2563 and 2757 of 1971
Judge
Reported inAIR1974P& H123
ActsPunjab Gram Panchayat Act, 1952 - Sections 5(3); Representation of the People Act, 1950 - Sections 19; Constitution of India - Articles 226 and 326
AppellantOm Prakash
RespondentState of Haryana and ors.
Cases ReferredPampakavi Rayappa Belagali v. B.D. Jatti
Excerpt:
.....single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the..........is nothing in article 326 of the constitution which would enable the high court while hearing election petitions to declare the election of a returned candidate to be void on the ground that certain persons who had voted in the election had not attained age of 21 years on the qualifying date. accordingly, section 100(1)(d)(iv) of the 1951 act also would be of no help to the position taken up on behalf of the petitioner.'3. according to these observations, the elections held on the basis of the electoral roll in force at the time of the election cannot be challenged, and that is exactly what the petitioners are seeking to do in these petitions. their lordships of the supreme court in pampakavi rayappa belagali v. b.d. jatti, air 1971 sc 1348, held (as per head note b)'the entire.....
Judgment:

1. This order will dispose of Civil Writ 2690 of 1971, Om Parkash v. State of Haryana, Civil Writ 2563 of 1971; Udmi v. State of Haryana, and Civil Writ 2757 of 1971; Rai Singh Parmar v. State of Haryana, as common questions of law and fact are involved in all these petitions.

2. The petitioners have challenged the elections to various Gram Panchayats held in July 1971 on the ground that some of the persons who were allowed to vote were not entitled to be voters as they were either minors or were registered as voters in two constituencies whereas they could vote only in one constituency. It is pleaded that this mater cannot be agitated in an election petition and, therefore, a petition under Art, 226 of the Constitution is the only remedy available to the petitioners. It is denied by the respondents in their written statements that persons whose names are mentioned in Annexure 'A' to each petition were not qualified to cast their votes at the election. Under Section 5(3) of the Punjab Gram Panchayat Act, 1952. 'Every person who, for the time being, is entered as a voter on the electoral roll of the State Legislative Assembly for the time being in force, and pertaining to the Sabha area, shall be a member of the Sabha of that Sabha area.' It is admitted by the petitioners that the persons to whose votes exception has been taken were entered in the Assembly Constituency Electoral Roll. That electoral roll could be amended in accordance with the provisions of the Representation of the People Act, 1950, and if not amended, the election had to take place on the basis thereof as in force at the time of the election. No authority has been empowered to modify or revise that electoral roll under the provisions of the Punjab Gram Panchayat Act, 1952, and, therefore, it is not possible to interfere in these petitions. A Full Bench of this Court in Roop Lal Mehta v. Dhan Singh, ILR (1968) 1 Punj & Har 651 = (AIR 1968 Punj 1)(FB), held:--

'There is nothing in Article 326 of the Constitution which would enable the High Court while hearing election petitions to declare the election of a returned candidate to be void on the ground that certain persons who had voted in the election had not attained age of 21 years on the qualifying date. Accordingly, Section 100(1)(d)(iv) of the 1951 Act also would be of no help to the position taken up on behalf of the petitioner.'

3. According to these observations, the elections held on the basis of the Electoral Roll in force at the time of the election cannot be challenged, and that is exactly what the petitioners are seeking to do in these petitions. Their Lordships of the Supreme Court in Pampakavi Rayappa Belagali v. B.D. Jatti, AIR 1971 SC 1348, held (as per head note B)

'The entire Scheme of the Act of 1950 and the amplitude of its provisions show that the entries made in an Electoral Roll of a constituency can only be challenged in accordance with the machinery provided by it and not in any other manner or before any other forum unless the question of violation of the provisions of the Constitution is involved.

The question whether the returned candidate was ordinarily resident in the constituency under Section 19(b) of the Act of 1950 during the material period and was entitled to be registered in the Electoral Roll could not be the subject-matter of enquiry except in accordance with the provisions of Act of 1950.'

4. According to these observations, the only method open to the petitioners is to have the Electoral Roll amended by approaching the authorities prescribed under the Representation of the People Act, 1950, for revising, modifying or maintaining the Electoral Roll for Assembly Constituencies, or it is that roll on the basis of which elections to the Gram Panchayats are held. I have already said above that no authority has been empowered under the Punjab Gram Panchayat to change or modify the Electoral Roll. The election has therefore, to be held on the basis of the Electoral Roll in force for the Assembly Constituency at the time the elections to Gram Panchayats are held.

5. For the reasons given above, there is no merit in these petitions which are dismissed but the parties are left to bear their own costs.

6. Petitions dismissed.


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