Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 2553 (ALL)

Rajendra Kumar v. State of U. P.

2019-11-14

ALOK MATHUR, P.K.JAISWAL

body2019
JUDGMENT : 1. Heard Pathak, learned counsel for the appellant and Ms. Aparjita Bansal, learned Standing Counsel for the respondent No. 4 and Sri Manish Mishra, learned Standing Counsel for the State-respondent Nos. 1 to 3 on C.M.A. No. 131505 of 2019 as well as admission of appeal. 2. The special appeal filed by the writ petitioner-appellant is barred by 25 days. 3. On due consideration of the reasons as-signed in the affidavit filed in support of the delay condonation application, cause shown in filing the appeal is sufficient. 4. The delay in filing the appeal is condoned. Civil Misc. Application No. 131505 of 2019 is accordingly allowed. 5. This special appeal is filed by the writ petitioner-appellant under Chapter VIII, Rule 5 of the Allahabad High Court Rules, 1952 against the Judgment and order dated 05.09.2019 passed by learned Writ Court in Misc. Bench No. 18761 of 2016 (Rajendra Kumar v. State of U.P. and others) whereby learned Writ Court affirmed the order dated 30.07.2016 passed by District Magistrate/District Election Officer under Section 11-E of the Panchayat Raj Act, 1947 (hereinafter referred to as "1947 Act"). 6. The learned Writ Court while passing the aforesaid Judgment and order impugned has held that the appellant was not qualified to contest 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 and the office Gram Pradhan Barauli is deemed to be vacant requiring a fresh process of election. 7. Brief facts of the case are that the appellant-Rajendra Kumar was the elected member, Kshetra Panchayat in General Election in the year 2010 of the Kshetra Panchayat, Barauli-II, whose tenure was till 17.3.2016. He has filled up his nomination for the post of Gram Pradhan, Member of Vikas Khand, Kachauna Gram Panchayat Barauli in General Election 2015 without giving resignation from the post of Member, Kshetra Panchayat and was declared as elected Pradhan of the aforesaid Gram Panchayat and he took oath on 19/20.12.2015. 8. It is not disputed by learned counsel for the appellant that on both the dates i.e. on the date of filing of nomination as well as on the date of taking oath as a Village Pradhan, the appellant was continued to function as a member of Kshetra Panchayat, Barauli. 9. 8. It is not disputed by learned counsel for the appellant that on both the dates i.e. on the date of filing of nomination as well as on the date of taking oath as a Village Pradhan, the appellant was continued to function as a member of Kshetra Panchayat, Barauli. 9. A complaint was made by one Anita Mishra that on account of holding of office of member, Kshetra Panchayat, the appellant was "ineligible" to contest the election of Gram Pradhan, therefore election was bad and he should be restrained from functioning as Gram Pradhan. Prior to this complaint i.e. on 09.02.2016, the appellant is stated to have resigned from the office of "Member Kshetra Panchayat". Ms. Aneeta Mishra then filed a writ petition before this Court arraying the appellant as respondent No. 6, being Misc. Bench No. 12466 of 2016 seeking for issuance of writ of quo-warranto, which was disposed of vide order dated 30.03.2016 directing the concerned District Magistrate to consider and decide her representation within a period of two months which order was passed after hearing the learned counsel for the appellant and the said order was not challenged. 10. In pursuance of the aforesaid complaint, Ms. Aneeta Mishra moved a representation before the concerned District Magistrate. The District Magistrate decided the same vide order dated 30.07.2016, It is this order which was challenged before the learned Writ Court. The District Magistrate had held in its order dated 30.07.2019 that the appellant was not qualified under Section 11-E of the 1947 Act for being elected to or holding the office of Pradhan as on the date of filing of nomination as well as on the date of taking oath as a Gram Pradhan, the appellant was an elected member of Kshetra Panchayat. 11. The District Magistrate/respondent No. 2 allowed the complaint holding that once the disqualification is detected, the Office becomes automatically vacant. As the writ petitioner was ineligible to hold two Offices, he was not qualified to contest the election to the office of Gram Pradhan and declared him as ineligible to hold the post of Member of Gram Panchayat by the reasons provided in Section 11(3) of the 1947 Act. The learned Writ Court upheld the aforesaid Order while dismissing the writ petition filed by the appellant on 5.9.2019. 12. The learned Writ Court upheld the aforesaid Order while dismissing the writ petition filed by the appellant on 5.9.2019. 12. Sri Sharad Pathak, learned counsel for the appellant has submitted that the District Magistrate has no jurisdiction to pass such order in the capacity of District Election Officer or for that matter in pursuance to the direction issued by the High Court because once the election is declared the District Election Officer became functus officio. He further submitted that once the appellant was elected as a 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 appellant as Gram Pradhan, the only remedy in terms of Election Petition under Section 12-C(1) of the 1947 Act but no election petition was filed within the period of limitation prescribed for the same having expired and in the absence of election petition, there was no other remedy nor there was any provision in the 1947 Act or in the Constitution under which any authority including the District Magistrate, could divest the appellant of the office of Gram Pradhan in the manner it had done. He has drawn our attention to the provisions of Section 11-E(2) of the 1947 Act and submitted that the said provisions 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 and in this view of the matter there is no question of "deemed vacancy" of the office held by the appellant. Learned Counsel has invited our attention to Rule 4(3)(a) of the U.P. Panchayat 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 proceedings for setting aside the election, therefore, the District Magistrate has no power to do so and has exceeded its jurisdiction. 13. Per contra, Ms. 13. Per contra, Ms. Aprajita Bansal, learned counsel for the respondent No. 3 has submitted that the remedy of election petition does not apply in the instant case what was pointed out by the complainant was the ineligibility of the appellant to hold two offices at the same time. Sections 11-E(1), 11-E(2), Sections 12-C(1), 12-D reads as under:- 11-E Further bar on holding two offices simultaneously. (1) A person shall be disqualified for being elected to or holding the office of Pradhan or member of Gram Panchayat or a Panch of 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 Kshetra Panchayat; or (c) member, Adhyaksha or Up-Adhyaksha of a Zilla Panchayat; or (d) Adhyaksha or Up-Adhyaksha of any cooperative society. (2) A person shall cease to hold the office of Pradhan or member of the Gram Panchayat or Panch of a Nyaya Panchayat, as the case may be, if subsequently, he is elected to any of the offices mentioned in Clauses (a) to (d) of sub-section (1) with effect from the date of such subsequent election and a casual vacancy shall thereupon occur in the office of such Pradhan or member or Panch, as the case may be. Section 12-C (1) Application for questioning the elections-- (1) The election of a person as Pradhan or as member of a Gram Panchayat including the election of a person appointed as the Panch 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 presented on the ground that-- (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. 12-D The provisions of Section 12-C shall mutatis mutandis apply to the election of person as [Up-Pradhan] of a [Gram Panchayat], Sarpanch or Sahayak Sarpanch of a Nyaya Panchayat. 14. 12-D The provisions of Section 12-C shall mutatis mutandis apply to the election of person as [Up-Pradhan] of a [Gram Panchayat], Sarpanch or Sahayak Sarpanch of a Nyaya Panchayat. 14. As per Section 11-E(1) of the 1947 Act 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) Member of Parliament or of the State Legislature; or (b) Member, Pramukh or Up-Pramukh of a Kshetra Panchayat; or (c) Member, Adhyaksh or Upadhyaksh of a Zilla Panchayat; or Adhyaksh or Upadhyaksh of any co-operative society. 15. It is well settled that once result of the election has been declared, the District Magistrate/District Election Officer becomes functus officio. Thereafter, the District Magistrate has power to take a decision for removal of Pradhan under Section 95(1)(g) of the 1947 Act. 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 1947 Act. The learned Writ Court has considered the question as to whether merely because an Election Petition was not filed against the appellant, who admittedly was disqualified from being elected or holding the office of Gram Pradhan in view of Section 11-E(1) of the 1947 Act should he be allowed to continue in office because the District Magistrate, who passed the order did not have jurisdiction to do so in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India should be a mute spectator to a void and illegal act and should dismiss the petition on that ground thereby sustaining and perpetuating an apparent illegality? 16. In the case in hand, the appellant has admitted about disqualification under Section 11(E) of the 1947 Act i.e. on the date of filing nomination for election of Gram Pradhan and on the date of taking oath to the office of Gram Pradhan, the appellant was a member of Kshetra Panchayat and under Section 11-E, the appellant was not disqualified from being elected but also from holding the office of Pradhan. In view of the aforesaid, the learned Writ Court finds that what the District Magistrate has done is only to reiterate the provisions contained in Section 11-E in view of the indisputable facts before it. In view of the aforesaid, the learned Writ Court finds that what the District Magistrate has done is only to reiterate the provisions contained in Section 11-E in view of the indisputable facts before it. In the matter of Godde Venkateswara Rao v. Government of Andhra Pradesh, reported in AIR 1966 SC 828 , the Apex Court has held as under:- "In those circumstance, 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 right refused to exercise its extraordinary discretionary power in the circumstances of the case. In the result, the appeal is dismissed but in the circumstances of the case, without costs". 17. In the case of M.C. Mehta v. Union of India and others, reported in (1999) 6 SCC 237 : ( AIR 1999 SC 2583 ), the Apex Court has 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. 18. Election Petition would be maintainable on the ground that the result of the election had been materially affected by improper acceptance or rejection of any 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 for election to the Office of Gram Panchayat and therefore, no election was filed by any aggrieved person. 19. The complainant by lodging a complaint brought to the knowledge of the District Magistrate that the elected Members of Gram Panchayat is to be disqualified not only from being elected as Member of Kshetra Panchayat, but also from holding the office of Pradhan. What the District Magistrate has done is only to reiterate the obvious based on the provisions contained in Section 11-E of the 1947 Act. 20. What the District Magistrate has done is only to reiterate the obvious based on the provisions contained in Section 11-E of the 1947 Act. 20. In the case of K. Venkatachalam v. A. Swamickan and another ( AIR 1999 SC 1723 ), the Hon'ble Supreme Court has held that the appellant therein in his nomination form impersonated a person known as Venkatachalam, taking advantage of the fact that such person bears his first name. The appellant therein was not an Elector in Electoral Roll for general election and he filed his nomination on affidavit impersonating himself with another person of some name in the Electoral Rolls. He lacked the basic qualification under Clause (c) of Article 173 of the Constitution read with Section 5 of the Representation of the People Act, 1950 which mandated that a person to be elected from an Assembly constituency has to be elector of that Assembly. His election as a Member of the Legislative Assembly was not challenged by filing an Election Petition under Section 81 of the Act. The single Judge dismissed the writ petition challenging his election on the ground that writ was not maintainable under Article 226 of the Constitution in view of the bar contained in Clause (b) of Article 329 of the Constitution of India. The Division Bench had held that the appellant was not an elector from Lalgudi Constituency and therefore did not possess the necessary qualification to be chosen from that Constituency. In these circumstances, Hon'ble Supreme Court held that the High Court can exercise its jurisdiction under Article 226 of the Constitution of India declaring that the appellant therein is not qualified to be member of Legislative Assembly from the Assembly Constituency. 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 and in such circumstances, the 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. The Apex Court further held that the High Court has rightly exercised its jurisdiction declaring that the appellant therein was not entitled to sit in Tamil Nadu Legislative Assembly. 21. In the case of Harnek Singh v. Charanjit Singh and others ( AIR 2006 SC 52 ), the Apex Court has held that Article 243-O of the Constitution of India mandates that all election disputes must be determined only by way of an election petition. This 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. 22. In the case of Gadde Venkateswara Rao v. Govt., of A.P. and others [ AIR 1966 SC 828 ], the Apex Court disapproved the interference by the High Court in exercise of its jurisdiction under Article 226 of the Constitution where more harm is likely to be caused to a society by such interference than as it would shake the confidence and faith of the society in the system and is prone to encouraging even the honest and sincere to deviate from their path. It was also held that the responsibility of the High Court as custodian of the Constitution is to maintain the social balance by interfering where necessary for sake of justice and refusing to interfere where it is against the social interest and public good. 23. Considering the aforesaid, we are of the view that the learned Writ Court has rightly observed that any interference with the impugned order dated 30.7.2016 under Article 226 of the Constitution of India 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 and it renders the holding of office of Gram Pradhan by the writ petitioner void ab initio. 24. For the reasons aforesaid, the inter-Court Appeal lacks merit and is accordingly dismissed.