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2016 DIGILAW 4017 (ALL)

Chhotey Lal v. State of U. P.

2016-12-14

PRAMOD KUMAR SRIVASTAVA

body2016
JUDGMENT Pramod Kumar Srivastava, J. 1. Heard Sri N.K. Pandey, counsel for the petitioner, Sri Arvind Kumar Singh, counsel for respondent no.-3, and Standing Counsel for respondents 1 and 2. 2. The petitioner had contested the election and was elected as Pradhan of Gram Panchayat Asrauli. Admittedly he was a person who had been convicted by Sessions Court in S.T. No.-253/1991 (State Vs. Kunwar Pal and others) for offence under section 324 IPC and was sentenced with imprisonment of two years and Rs. 3,000/- as fine. Against said judgment dated 23.7.1996, he had preferred Criminal Appeal No.-1317/1996 (Kunwar Pal Singh and others Vs. State) which is pending before this Court. These facts were not concealed by the petitioner when he had filled the form for candidature of election for the post of Gram Pradhan. After said election, he was elected, then Smt. Vidyawati and one other person had filed Writ-C No.-8540 of 2016 (Smt. Vidyawati and Anr. Vs. State of U.P. and others) challenging the election of petitioner. In said writ petition, notices were issued on 24.2.2016 to respondents and matter is still sub-judice before this Court. Thereafter one Kishan Pal Singh had made complaint before C.D.O., Etah mentioning that petitioner was convicted in criminal case, so he was ineligible to contest election of Gram Pradhan. 3. On said complaint, the matter was considered and legal opinion was obtained from District Government Counsel, and thereafter on the basis of said legal opinion, the respondent no.-2 District Magistrate, Etah had passed impugned order dated 15.11.2016, by which it was held that on the basis of judgment of conviction and sentence, that has not been stayed, the petitioner is ineligible to be elected for the post of Pradhan of Gram Panchayat. Accordingly the respondent no.-2 District Magistrate had removed the petitioner from the post of Pradhan of Gram Panchayat and declared said post as vacant. Against this impugned order of respondent no.-2, present writ petition has been preferred. 4. Learned counsel for the petitioner submitted that no fact was concealed by petitioner in the application for candidature of aforesaid post/election, and he was permitted to contest the election. He was elected without any irregularity. Against this impugned order of respondent no.-2, present writ petition has been preferred. 4. Learned counsel for the petitioner submitted that no fact was concealed by petitioner in the application for candidature of aforesaid post/election, and he was permitted to contest the election. He was elected without any irregularity. His submissions is that a Gram Pradhan cannot be removed from his post without adopting proper procedure and without formal enquiry; but in this matter on the basis of complaint only legal opinion of the District Government Counsel was obtained and impugned order was passed, without affording opportunity of hearing to petitioner; therefore the impugned order is illegal and should be quashed. 5. Sri Arvind Kumar Singh appeared on behalf of respondent Kishan Pal Singh, who contended that after being convicted for criminal offence, the petitioner was not eligible to be elected as Gram Pradhan under legal provisions; therefore his removal from the post of Gram Pradhan is not erroneous. 6. From perusal of impugned order and records and after considering the arguments, this submissions of learned counsel for the petitioner is apparently not unacceptable that if a person has been convicted on a public post, then his removal in ordinary course should be only after adopting proper procedure and after affording him opportunity of hearing, which was not done the case in matter in hand. But on the other hand it is admitted legal position that Section 8(3) of the Representation of Peoples Act, 1951, as adopted by U.P. Panchayat Raj Act, 1947, is applicable in this matter wherein it has been specifically provided that "A person convicted of any offence and sentenced to imprisonment for not less than two years other than any offence referred to in sub-section (1) or sub-section (2) shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release." Admittedly conviction of petitioner is not for the offences mentioned in sub-sections (1) and (2) of said section 8. In present matter sentence and conviction of petitioner was for imprisonment of two years and fine; therefore, at the outset he was not eligible for the post of Gram Pradhan because his conviction was continuing. 7. In present matter sentence and conviction of petitioner was for imprisonment of two years and fine; therefore, at the outset he was not eligible for the post of Gram Pradhan because his conviction was continuing. 7. On one hand petitioner was permitted to contest election inspite of his information submitted regarding relevant facts, and on other hand he was apparently ineligible under the law for said post. Then in such cases, the pertinent question before this Court is that whether the removal of petitioner without following the formal procedure of removal, as required in ordinary course is necessary or not. These facts are still sub-judice before this Court in Writ-C No.-8540 of 2016. Matter relates to holding of a public office having effect on decisions relating to public good. Considering the pendency of said writ petition relating to this matter, and also considering the admitted legal position of ineligibility after conviction and existing sentence of the petitioner and the provisions of section 8 of Representation of Peoples Act, this Court is not inclined to exercise extra ordinary writ jurisdiction to interfere in the matter, inspite of order of removal of petitioner from said post without formal inquiry. Accordingly, the relief sought in this writ petition is declined. 8. Inspite of this judgment in present writ petition, the decision of Writ-C no.-8540 of 2016 and any direction in that matter by this Court would be binding on the parties. 9. Accordingly, this writ petition stands disposed of.