JUDGMENT : Rajan Roy, J. Heard Sri Apoorva Tewari learned counsel for the petitioner, Ms Aparita Bansal for the State Election Commission and Sri Anuj Garg learned standing counsel. 2. This writ petition has been filed under Article 226 of the Constitution of India challenging an order passed by the District Magistrate/District Election Officer on 30.07.2016 under Section 11-E of the U.P. Panchat Raj Act, 1947 (hereinafter referred to as 'the Act, 1947') wherein he has held that the petitioner was not qualified for contesting the election to the office of Gram Pradhan Village Barauli, District Hardoi, as, on the date of filing nomination he was functioning as an elected member of Kshetra Panchayat Barauli. Accordingly he has held that the office of Gram Pradhan Barauli is deemed to be vacant requiring a fresh process of election. 3. The facts of the case are that the petitioner admittedly was a member of Kshetra Panchayat Barauli and his tenure was till 17.03.2016. He filed his nomination for contesting election to the office of Gram Pradhan while he was still continuing as a member of Gram Panchayat. On 13.12.2015 the result of the election to the office of Gram Pradhan was declared and he took oath of office on 19/20.12.2015. Even at the cost of repetition it needs to be stated that it is the admitted factual position that on both the dates i.e. on the date of filing of nomination and on the date of taking oath of office of Gran Pradhan, he continued to function as an elected member of Kshetra Panchayat Barauli. A complaint was made by one Aneeta Mishra that on account of holding office of member, Kshetra Panchayat, petitioner was ineligible to contest the election to the office of Gram Pradhan, therefore, the election was bad and he should be restrained from functioning as Gram Pradhan. Prior to this complaint i.e. on 09.02.2016, the petitioner is stated to have resigned from office of MEMBER, Kshetra Panchayat. The contention of the counsel for the petitioner is that this resignation was not actuated by detection of any dis-qualification but was a voluntary act on the part of the petitioner. Ms. Aneeta Mishra then filed a writ petition before this Court bearing no. 12466 (MB) of 2016 seeking a writ of quo warranto. The contention of the counsel for the petitioner is that this resignation was not actuated by detection of any dis-qualification but was a voluntary act on the part of the petitioner. Ms. Aneeta Mishra then filed a writ petition before this Court bearing no. 12466 (MB) of 2016 seeking a writ of quo warranto. The said writ petition was disposed of on 30.03.2016 in the following terms:- "Shri Manoj Kumar Mishra, Advocate has filed Vakalatnama on behalf of opposite party no.6. The same is taken on record. This petition has been filed with the following prayers:- (a) To issue a writ, order or direction in the nature of quo warranto for removal of Sri Rajendra Kumar Son of Sri Ram Kumar from Office of Village Pradhan of Village Panchayat-Barauli, Block-Kachauna, District-Hardoi. (b) To issue a writ order or direction in the nature of Mandamus commanding the opposite party no.3 to pass an order for declaration of the post of Village Pradhan of Village Panchayat-Barauli, Block-Kachauna, District-Hardoi as Vacant in view of Section 11(E) of Uttar Pradesh Panchayat Raj Act, 1947. chequered(c) To issue a writ, order or direction in the nature of Mandamus commanding the opposite party no.2 to issue a notification for holding a fresh election for Office of Village Pradhan of Village Panchayat-Barauli, Block-Kachauna, District Hardoi. (d) To issue a writ, order or direction in the nature of Mandamus commanding the opposite party no.4 to declare the proceedings followed by decisions taken by the opposite party no.6 as void since he was elected for the post of Pradhan of Village Panchayat-Barauli, Block-Kachauna, District-Hardoi. (e) To issue any other order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case. (f) Award cost of the writ petition in favour of the petitioner against the opposite party, forthwith to impart due justice. 4. The representation of other person contained in Annexure-4 was disposed of by the District Magistrate. Though it is stated by counsel for the petitioner that in the representation, the petitioner has taken grounds in respect of disqualification of opposite party no.6 from the office held by him. 5. 4. The representation of other person contained in Annexure-4 was disposed of by the District Magistrate. Though it is stated by counsel for the petitioner that in the representation, the petitioner has taken grounds in respect of disqualification of opposite party no.6 from the office held by him. 5. Learned counsel for the petitioner further submits that it is incumbent upon District Magistrate to consider and dispose of the representation and decide the issue in accordance with law but the District Magistrate is not paying any attention to the representation. 6. In the aforesaid circumstances, the writ petition is disposed of with direction to the District Magistrate to consider and dispose of the representation preferred by the petitioner within a period of two months." 7. The aforesaid order was passed after hearing the parties including the petitioner herein, who had put in appearance. The petitioner who was the opposite party no.6 therein did not challenge the aforesaid order of the High Court. 8. In pursuance to the aforesaid complaint Ms. Aneeta Mishra moved a representation before the District Magistrate and it is this representation which has been decided by the said officer on 30.07.2016 which is impugned herein. 9. It is not out of place to mention that Ms. Aneeta Misra moved an application for being impleaded as an opposite party in this petition but it was rejected on the ground that a complainant was not a necessary party. 10. The contention of Sri Tewari learned counsel for the petitioner is firstly that the District Magistrate had no jurisdiction to pass such an order even in his capacity as District Election Officer or for that matter in pursuance to the direction issued by the High Court, as a District Election Officer becomes functus-officio once the election result is declared and in this regard, he has relied upon a Division Bench judgment reported in (Smt. Ram Kanti vs. District Magistrate, Hamirpur and others, (1995) 2 UPLBEC 771) and connected matters, wherein, the aforesaid preposition of law has been laid down. The same principle has been reiterated in a subsequent decision reported in (Sunita Patel vs. State of U.P. & others, 2006 1 AllLJ 417 (DB)) albeit in the context of Kheshtra Panchayat election. 11. The same principle has been reiterated in a subsequent decision reported in (Sunita Patel vs. State of U.P. & others, 2006 1 AllLJ 417 (DB)) albeit in the context of Kheshtra Panchayat election. 11. Learned counsel for the petitioner further contends that if the legislature has not conferred jurisdiction on a particular authority in respect of a particular subject then such jurisdiction cannot be conferred by consent or even by the order of the Courts and the Court cannot issue direction to an incompetent authority to decide a dispute is well settled. 12. Contention of the learned counsel is that once the petitioner was elected as Gram Pradhan, in view of the provisions contained in Article 243(o) of the Constitution to the effect "notwithstanding anything in the constitution, no election to any Panchayat shall be called in question except by Election Petition presented to such authority in such manner as is provided for under any law made by the legislation", as, the challenge in essence was to the election of the petitioner as Gram Pradhan, the only remedy available was in terms of an Election Petition under Section 12-C(1) of the Act, 1947 but no Election Petition was filed and the period of limitation prescribed for the same having expired, the writ petition for issuance of quo warranto filed by Aneeta Mishra also having been disposed of, in the absence of any challenge to petitioner's election by filing an Election Petition, there was no other remedy available to any aggrieved person, nor was there any provision in the Act, 1947 or in the Constitution of India under which any authority including the District Magistrate could divest the petitioner of the office of Gram Pradhan in the manner it had been done. 13. This apart, Sri Apoorva Tewari learned counsel for the petitioner contended that reference to Section 11-E(2) of the Act, 1947 in the impugned order is misconceived for the reason that the said provision is attracted only in an eventuality where after a person has been elected as Gram Pradhan, he, is elected subsequently to another office, which is not the case here. Furthermore, he says that in this view of the matter there is no question of 'deemed vacancy' of the office held by the petitioner. 14. Furthermore, he says that in this view of the matter there is no question of 'deemed vacancy' of the office held by the petitioner. 14. According to him, even if an election petition had been filed the defence would be open to the petitioner that Section 12-C does not apply to the facts of the present case as it does not fall in any of the eventualities mentioned therein, including 'voidance' of election and that even such 'viodance' is required to be declared by the Courts, even if, in collateral proceedings, and the District Magistrate could not have done so. He also submitted that requirement of the Election being 'materially affected' would still not be satisfied. In this context he also invited the attention of the Court to Rule 4(3)(a) of the U.P. Pachayat Raj (Settlement of Election) Disputes Rules, 1997 to contend that casual vacancy can be declared by the Sub Divisional Officer i.e. the Prescribed authority that too only in a proceeding for setting aside the election, therefore, the District Magistrate had no power to do so and has exceeded his jurisdiction. 15. Ms. Aparajita Bansal learned counsel appearing for Election Commission has invited the attention of the Court to sub Section 3 of Section 11-E, however sub section 3 relates to the first election under the Act, 1947, therefore, the same does not apply in this case as it was not the first election under the Act. She also submitted that so far as Section 11-D of the Act, 1947 is concerned the Rules have been framed for vacancy of the office but in respect of Section 11-E no such Rules have been framed, therefore, once the disqualification is detected the office becomes automatically vacant and all that the District Magistrate has done is to declare it to be so. She also submitted that the remedy of an Election Petition under Section 12-C(1) was not available in this case as in fact there was no challenge to the election, what was pointed out by the complainant was the ineligibility of the petitioner to hold two offices at the same time. Sri Anuj Garg learned standing counsel submitted arguments on the same line as Ms Aparajita Bansal. 16. Sri Anuj Garg learned standing counsel submitted arguments on the same line as Ms Aparajita Bansal. 16. As per Section 11-E(1) of the Act, 1947 a person shall be disqualified for being elected to or holding the office of Pradhan or member of Gram Panchayat or a Panchayat or a Nyaya Panchayat, if he is (a) a member of parliament or of the State Legislature; or (b) member, Pramukh or Up-pramukh of a Kshettra Panchayat; or (c) member, Adhyaksha or Upadhyaksha of a Zila Panchayat; or Adhyaksha or Upadhyaksha of any co-operative society. 17. As regards the first contention of learned counsel for the petitioner, the legal position is well settled that once the result of the election has been declared the District Magistrate/District Election Officer becomes functus officio. The District Magistrate thereafter has power to take a decision for removal of Pradhan under Section 95(1)(g) of the Act, 1947. The Court does not find any ground mentioned in Section 95(1)(g) or under Section 5-A of the Act, 1947 as being available in this case for availing the remedy under Section 95(1)(g) of the Act, 1947 and Section 6-A of the Act, 1947. The disqualification mentioned in Section 11-E is not mentioned in Section 5-A nor as a ground for removal under Section 95(1)(g) of the Act, 1947. An Election petition assuming it would have been maintainable on the ground that the result of the election had been materially affected by improper acceptance or rejection of petitioner's nomination or by gross failure to comply with the provisions of the Act or the Rules framed thereunder, as, while holding the office of member of Kshetra Panchayat he could not have filed the nomination paper for Election to the office of Gram Pradhan, the fact of the matter is that no Election petition was filed by any aggrieved person instead a writ of quo warranto was filed which was disposed of as already stated. Now the question to be considered is whether merely because an Election Petition was not filed against the petitioner, who admittedly was disqualified from being elected or holding the office of Gram Pradhan in view of the provisions contained in Section 11-E(1) of the Act, 1947, should he be allowed to continue in office because the District Magistrate who has passed the impugned order did not have jurisdiction to do so and this Court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution should be a mute-spectator to a void and illegal act and should dismiss this petition on this ground thereby sustaining and perpetuating an apparent illegality.? While it is true that so far as elections are are concerned, in view of the provisions contained in Article 243(O), the remedy is by way of an Election Petition but there is a decision to the effect of the Supreme Court reported in (K. Venkatachalam vs. A. Swamickan and another, (1999) 4 SCC 526 ) wherein their Lordship at the Supreme Court have said that Article 243 (O) of the Constitution by itself may not per-se bar judicial review which is the basic structure of the Constitution but ordinarily such jurisdiction would not be exercised, there may be some cases where a writ petition would be entertained. Reference may also be made to another decision reported in (Karnek Singh vs. Charanjit Singh, (2005) 8 SCC 383 ) wherein their Lordships of the Supreme Court held as under:- "29. In view of the judgment of this Court in the case of Election Commission of India v. Saka Vankata Rao it may be that action under Article 192 could not be taken as the disqualification which the appellant incurred was prior to his election. Various decisions of this Court, which have been referred to by the appellant that jurisdiction of the High Court under Article 226 is barred challenging the election of a returned candidate and which we have noted above, do not appear to apply to the case of the appellant now before us. Various decisions of this Court, which have been referred to by the appellant that jurisdiction of the High Court under Article 226 is barred challenging the election of a returned candidate and which we have noted above, do not appear to apply to the case of the appellant now before us. Article 226 of the Constitution is couched in widest possible term and unless there is clear bar to jurisdiction of the High Court its powers under Article 226 of the Constitution can be exercised when there is any act which is against any provision of law or violative of constitutional provisions and when recourse cannot be had to the provisions of the Act for the appropriate relief. In circumstances like the present one bar of Article 329(b) will not come into play when case falls under Articles 191 and 193 and whole of the election process is over. Consider the case where the person elected is not a citizen of India. Would the Court allow a foreign citizen to sit and vote in the Legislative Assembly and not exercise jurisdiction under Article 226 of the Constitution? 30. We are, therefore, of the view that the High Court rightly exercised its jurisdiction in entertaining the writ petition under Article 226 of the Constitution and declared that the appellant was not entitled to sit in Tamil Nadu Legislative Assembly with consequent restraint order on him from functioning as a member of the Legislative Assembly. The net effect is that the appellant ceases to be a member of the Tamil Nadu Legislative Assembly. Period of the Legislative Assembly is long since over. Otherwise we would have directed respondent No. 2, who is Secretary to Tamil Nadu Legislative Assembly, to intimate to Election Commission that Lalgudi Assembly constituency seat has fallen vacant and for the Election Commission to take necessary steps to hold fresh election from that Assembly Constituency. Normally in a case like this Election Commission should invariably be made a party. 31. When leave to appeal was granted to the appellant by this Court operation of the impugned judgment was suspended. Respondent No. 2 shall intimate to the State Government as to for how many days the appellant sat as a member of the Legislative Assembly and it would be for the State Government to recover penalty from the appellant in terms of Article 193 of the Constitution. 32. Respondent No. 2 shall intimate to the State Government as to for how many days the appellant sat as a member of the Legislative Assembly and it would be for the State Government to recover penalty from the appellant in terms of Article 193 of the Constitution. 32. This appeal is dismissed with costs." 18. In the present case the one fact which makes a difference is the admitted case of the petitioner himself about his disqualification under Section 11-E of the Act. i.e. the admission of the fact that on the date of filing nomination for election to the office of Gram Pradhan and taking oath he was a member of Kshetra Panchayat then under Section 11-E he was disqualified not only from being elected but also from holding the office of Pradhan as is evident from the language used in the provision. Based on this indisputable factual scenario the irresistible conclusion is that he was disqualified to contest the election of Gram Pradhan under Section 11-E. Furthermore, as already stated, the Court finds that Section 11-E did not only disqualify him from being elected but also from holding the office of Pradhan. Even otherwise, in view of the aforesaid admitted factual scenario while it is true that the District Election Office had become functus-officio after declaration of the election result and the District Magistrate could not have declared the election of the petitioner to be void, this Court finds what the District Magistrate has done is only to reiterate the obvious based on the provisions contained in Section 11-E in view of the indisputable facts before him. The consequence of it is a vacancy on the office of Gram Pradhan. Merely because he has referred to Section 11-E(2) can not be a ground for interference by this Court under Article 226 of the Constitution. A hyper-technical approach in this regard is not warranted. Even assuming that the District Magistrate did not have power in this regard, if interference with his order revives an apparent illegality this Court would decline to do so if substantial justice has been done as is the case here. A hyper-technical approach in this regard is not warranted. Even assuming that the District Magistrate did not have power in this regard, if interference with his order revives an apparent illegality this Court would decline to do so if substantial justice has been done as is the case here. Reference may be made to the decision reported in (Godde Venkateswara Rao vs Government Of Andhra Pradesh, 1996 AIR SC 828) wherein their Lordships of the Supreme Court of India sustained the decision of the High Court exercising its discretion refusing to interfere with an order of Government, which it did have power and jurisdiction to pass, as it would have restored an illegal order. The Supreme Court held as under:- "In those circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the Government dated April 18, 1963? If the High Court had quashed the said order, it would have restored an illegal order--it would have given the Health Centre to a village contrary to the valid resolution passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise its extra ordinary discretionary power in the circumstances of the case. 19. In the result, the appeal is dismissed, but, in the circumstances of the case, without costs." 20. On the same line there is another decision of the Supreme Court reported in (M. C. Mehta v. Union of India and others, (1999) 6 SCC 237 ) wherein it was held that the Court can refuse to exercise its discretion of striking down an order, if such striking down will result in restoration of another order passed earlier in favour of the petitioner and against the opposite parties in violation of principle of natural justice or it is otherwise not in accordance with law. A reference was also made therein to another decision of the Supreme Court on the same line reported in (Mohd. Shwale vs. III ADJ, (1988) 1 SCC 40 ). 21. Reference may also be made to a Division Bench Judgment of this Court reported in (Om Prakash vs. U.P. Secondary Education Service Commission Allenganj Allahabad and others, 1990 2 UPLBEC 983) wherein, this Court declined to interfere in a decision taken without jurisdiction, as, substantial justice had been done in the matter. 21. Reference may also be made to a Division Bench Judgment of this Court reported in (Om Prakash vs. U.P. Secondary Education Service Commission Allenganj Allahabad and others, 1990 2 UPLBEC 983) wherein, this Court declined to interfere in a decision taken without jurisdiction, as, substantial justice had been done in the matter. Reference may also be made to a decision of the Supreme Court reported in (State of Maharashtra and others vs. Prabhu, (1994) 2 SCC 481 ) wherein, the Supreme Court disapproved interference by the High Court in exercise of its equity jurisdiction under Article 226 of the Constitution where more harm is likely to be caused to a society by such interference than good as it would shake the confidence and faith of the society in the system and would be prone to encouraging even the honest and sincere to deviate from their path. It held that it was the responsibility of the High Court as custodian of the Constitution to maintain the social balance by interfering where necessary for the sake of justice and refusing to interfere where it is against the social interest and public good. Their Lordships also observed as under:- "Even assuming that the construction placed by the High Court and vehemently defended by the learned counsel for respondent is correct should the High Court have interfered with the order of Government in exercise of its equity jurisdiction. The distinction between writs issued as a matter of right such as habeas corpus and those issued in exercise of discretion such as certiorari and mandamus are well known and explained in countless decisions given by this Court and English Courts. It is not necessary to recount them. The High Court exercise control over Government functioning and ensure obedience of rules and law by enforcing proper, fair and just performance of duty. Where the Government or any authority posses an order which is contrary to rules or law it becomes amenable to correction by the courts in exercise of writ jurisdiction. But one of the principle inherent in it is that the exercise of power should be for the sake of justice. One of the yardstick for it is if the quashing of the order results in greater harm to the society then the court may restrain from exercising the power." 22. But one of the principle inherent in it is that the exercise of power should be for the sake of justice. One of the yardstick for it is if the quashing of the order results in greater harm to the society then the court may restrain from exercising the power." 22. Reference may also be made to another decision of the Supreme Court reported in (A.M. Allison and another vs. B.L. Sen and others, (1957) AIR SC 227) wherein a plea of lack of jurisdiction was taken yet the Supreme Court upheld the decision of the High Court by observing that proceedings by way of certiorari are "not of Course" (vide Halsbury's Laws of England', Hailsham Edition, Vol.9 paras 1480 and 1481, pp. 877-878). The High Court of Assam had the power to refuse the writs if it was satisfied that there was no failure of justice and that the Supreme Court could refused to interfere in appeals directed against such order of the High Court under Article 226 unless it was satisfied that the justice of the case required it. In the said case the Supreme Court held that it was not satisfied that it requires interference. 23. In the instant case any interference by this Court would restore and perpetuate an illegality and would encourage others to violate the law contained in Section 11-E in the belief that they would get away with it. 24. Sri Tewari in a desperate effort to protect the interest of his client attempted to argue that the defect was curable but on being confronted with the provisions contained in Section 11-E, he let go, as, the defect dis-entitled the petitioner to contest the election in the first place and also to hold the office in question and was too fundamental to be cured. It renders the holding of office of Gram Pradhan by the petitioner void ab-initio. 25. For these reasons this Court declines to exercise its equitable, discretionary and extra ordinary jurisdiction under Article 226 of the Constitution of India in the facts and circumstances of the case and does not interfere with the impugned order, as, substantial justice has been done in the matter. Consequently the petitioner shall not be entitled to continue as Gram Pradhan of Gram Panchayat Barauli. Interim order granted earlier stands vacated. 26. Consequently the petitioner shall not be entitled to continue as Gram Pradhan of Gram Panchayat Barauli. Interim order granted earlier stands vacated. 26. This judgment shall not be treated as an affirmation of the powers of the District Magistrate/District Election Officer to pass such orders, but as a refusal by this Court to exercise its discretionary and equity jurisdiction for the above reasons. 27. Till elections to the office of Gram Pradhan of Gram Panchayat Barauli are held the District Magistrate shall make interim arrangement in terms of Section 12-J of the Act, 1947. 28. For these reasons the writ petition is dismissed.