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2001 DIGILAW 1089 (ALL)

RAMADIN SHAKYA v. STATE OF UTTAR PRADESH

2001-11-28

R.R.YADAV

body2001
R. R. YADAV, J. ( 1 ) HEARD the learned counsel for the petitioner, Sri Manish Goyal at length, Perused the material available on record. ( 2 ) BY way of filing the present writ petition, the petitioner is seeking a relief, of quo warranto removing respondent No. 4 from the office of Pradhan of Village Panchayat, Barkhera, tehsil-Kayamganj, district Farrukhabad on the ground, inter alia, that respondent No. 4 was convicted in the year 1980 and as such, he was not eligible to contest the office of Pradhan. Since the respondent No. 4 was disqualified to contest the office of Pradhan, therefore, he is not entitled to hold the office of Pradhan and by issuing a writ of quo warranto he deserves to be non-seated. ( 3 ) A pointed question was asked to the learned counsel for the petitioner about interpretation of article 243-O of the Constitution which reads thus : "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 pan-chayat shall be called in question except by an election petition presented to such authority and in such manner as Js provided for by or under any law made by the Legislature of a State. " ( 4 ) WHEN the learned counsel for the petitioner was confronted with mandatory provisions enshrined under Article 243-O of the Constitution, he submitted that the mandatory provisions enshrined in the aforesaid Article speak about filing of an election petition but even If no election petition is filed, the eligibility of a person holding office of Pradhan can be questioned by way of filing a writ petition seeking relief of quo warranto. The aforesaid argument of the learned counsel for the petitioner is not acceptable for the reasons given hereinbelow. ( 5 ) FIRSTLY, provisions of Article 243-O of the Constitution mentioned hereinabove have overriding effect on other provisions. The aforesaid argument of the learned counsel for the petitioner is not acceptable for the reasons given hereinbelow. ( 5 ) FIRSTLY, provisions of Article 243-O of the Constitution mentioned hereinabove have overriding effect on other provisions. Article 243-O specifically provides that 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, which means that an elected Pradhan cannot be non-seated from the office of Pradhan, except by way of filing an election petition under Section 12c of U. P. Panchayat Raj Act and Rules framed thereunder. ( 6 ) INDISPUTABLY, in the present case no election petition has been filed by the petitioner questioning the legality and validity of declaration of result of Pradhan of village panchayat, barkhera, i. e. , respondent No. 4 by Returning Officer as envisaged under Section 12c of U. P. Panchayat Raj Act and Rules framed thereunder. ( 7 ) THERE is yet another reason to arrive at the aforesaid conclusion. Section 12c of U. P. Panchayat Raj Act, 1947, specifically provides that the election of a person as Pradhan or as member of a Gram Panchayat including the election of a person appointed as the punch of the nyaya Panchayat under Section 43 shall not be called in question except by an application presented to such authority within such time and in such manner as may be prescribed on the grounds enumerated under the Section. The grounds enumerated under Section 12c are relevant for decision of the present case. It is true that if the grounds enumerated under Section 12c of u. P. Panchayat Raj Act are not attracted in the facts and circumstances of the present case, then of course a writ of quo warranto is maintainable, but if the grounds mentioned under aforesaid section are attracted, then naturally respondent No. 4 who is an elected Pradhan, cannot be non-seated except by way of filing an election petition, as contemplated under Article 243o of the Constitution read with Section 12c of U. P. Panchayat Raj Act. ( 8 ) FOR deeper and better understanding of the question involved in the Instant writ petition, it would be expedient to quote the grounds enumerated under Section 12c of U. P. Panchayat Raj act: "12c xx xx xx xx xx xx (a) the election has not been a free election by reason that the corrupt practice of bribery or undue influence has extensively prevailed at the election, or (b) that the result of the election has been materially affected : (i) by the improper acceptance or rejection of any nomination or ; (ii) by gross failure to comply with the provisions of this Act or the rules framed thereunder. xx xx xx xx xx xx xx" ( 9 ) A close scrutiny of sub-clause (i) of Clause (b) of Sub-section (1) of Section 12c speaks that if the result of a person elected as Pradhan is materially affected by improper acceptance or rejection of any nomination paper, then such declaration of result of Pradhan can be questioned by way of filing an election petition. Here, in the present case, indisputably as urged by learned counsel for the petitioner with emphasis, the respondent No. 4, who is an elected Pradhan was convicted in the year 1980, meaning thereby that he was not eligible to contest the election and his nomination paper ought to have been rejected by the Returning Officer. Assuming for argument sake that before Returning Officer, such objection was not raised on account of non-availability of opportunity to the petitioner, then an opportunity was available to the petitioner by way of filing election petition for non-seating respondent No. 4 from the office of pradhan on the ground that as respondent No. 4 had been convicted in the year 1980, therefore, his nomination paper was improperly accepted by Returning Officer. If an election petition would have been filed under Section 12c of U. P. Panchayat Raj Act, then the Election Tribunal would have decided the same on merits after probing into the facts as to whether respondent No. 4 was convicted on moral turpitude or his conviction does not fall within the definition of moral turpitude. Similarly, the Election Tribunal ought to have enquired in deep as to whether the limit of five years prescribed for dis-qualification still exists or it has expired. Similarly, the Election Tribunal ought to have enquired in deep as to whether the limit of five years prescribed for dis-qualification still exists or it has expired. But, no election petition has been filed, therefore, in my considered opinion in view of the mandatory provisions enshrined under Article 243-O of the Constitution read with Section 12c of U. P. Panchayat Raj act and Rules framed thereunder, the present writ petition for Issue of a quo warranto is not maintainable and is liable to be dismissed at admission stage. ( 10 ) IN my considered opinion, the election of Pradhan in the present case cannot be questioned by way of filing a writ of quo warranto in view of mandatory provisions enshrined under Article 243-O of the Constitution which has overriding effect on other law on the subject. It is well to remember that norms of the Constitution are supreme norms under which every enactment is to be passed and every action of the constitutional functionaries is to be tested. No statutory provision can be allowed to prevail over mandatory provisions postulated under Article 243-O of the Constitution I am hastened to add here that even under statutory provisions under Section 12c of U. P. Panchayat Raj Act, 1947, the election of Pradhan cannot be called in question except by way of an election petition to such authority within such time and in such manner as may be prescribed on the grounds enumerated under the said Section. ( 11 ) LEARNED counsel for the petitioner brought to my notice a decision rendered by Supreme court in the case of B. R. Kapoor v. State of Tamil Nadu and Ors. , LRI 2001 (3) 1327 (SC ). In my considered opinion, the facts and circumstances of the present case are distinguishable from the facts and circumstances of the decision rendered in the case of B. R. Kapoor (supra ). Since the facts and circumstances of the present case are distinguishable from the facts and circumstances of the case of B. R. Kapoor (supra), therefore, the ratio of the decision rendered in the aforesaid case by Apex Court is not extendable to the facts and circumstances of the present case. ( 12 ) UPSHOT of the aforementioned discussion is that the instant writ petition lacks merit and it is hereby dismissed in limine.