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2022 DIGILAW 227 (ALL)

Ompal v. State Of U. P.

2022-02-21

SAUMITRA DAYAL SINGH

body2022
JUDGMENT : 1. Heard Sri Prem Prakash Yadav, learned Standing Counsel assisted by Sri Devendra Pratap Yadav, learned counsel for the petitioner, Sri Imran Syed, holding brief of learned counsel for the respondent-Election Commission and learned Standing Counsel for the State-respondent. 2. Present petition has been filed seeking a writ of quo warranto against the private respondent no.10 who is the elected Gram Pradhan of Gram Panchayat, Nanuta Dehat Pargana & Tehsil Rampur Maniharan, District-Saharanpur. 3. The exact foundation for the present petition is, undisputedly, the said respondent no.10 is an elector included in the list of electors for the Nagar Nigam Nanuta for the year 2017. Without seeking deletion of her name from that list, her name was included in the list of electors from the Gram Panchayat, Nanuta Dehat for the year 2021. Thus, the said respondent is wholly ineligible. Heavy reliance has been placed on the mandatory provision of Section 9(7) of the UP Panchayat Raj Act, 1947 (hereinafter referred to as the 'Act'). 4. In support of his submission, learned Senior Counsel appearing for the petitioner has also referred to a decision of the Supreme Court in Bharati Reddy Vs State of Karnataka & Others (2018) 12 SCC 61 . In that case, the bar of alternative remedy created under Article 243-O(b) was held to be contrary to the basic structure of the constitution and therefore not enforceable. 5. On the other hand, learned counsel for the Election Commission would contend that by virtue of the statutory provision contained in Section 12-C of the Act and the enabling provision under Section 12-C(3) of the Act read with Article 243-O, the only remedy available to the petitioner is to file an election petition. He has relied on a Division Bench decision of this Court in Gyanveer Singh Vs State of U.P. & Others 2020 (10) ADJ 497 (DB). 6. Having heard learned counsel for the parties, in the first place, by virtue of Section 12-C(1)(b) read with Section 12-C(3), it cannot be denied that the petitioner could have maintained an election petition on the ground brought by him in this petition. 6. Having heard learned counsel for the parties, in the first place, by virtue of Section 12-C(1)(b) read with Section 12-C(3), it cannot be denied that the petitioner could have maintained an election petition on the ground brought by him in this petition. Similar view has been taken by the Division Bench of this Court in Gyanveer Singh Vs State of U.P. & Others (supra) after following the ratio of the Supreme Court decision in Jaspal Singh Arora Vs State of M.P. (1998) 9 SCC 594 ; Gurdeep Singh Dhillon Vs Satpal (2006) 10 SCC 616 and K. Venkatachalam Vs. A. Swamickan & Another (1999) 4 SCC 526 . 7. Insofar as the other decision of the Supreme Court, relied upon by learned Senior Counsel for the petitioner is concerned, in Bharati Reddy Vs State of Karnataka & Others (supra) though it was held (to the contrary) that the jurisdiction of judicial review of this Court under Articles 226 and 227 of the Constitution and of the Supreme Court were part of the basic structure of the Constitution and could not be abridged or by passed, at the same time, in paragraph no.13 of the decision, it was observed as under : "13. It is thus clear that power of judicial review under Articles 226/227 of the Constitution is an essential feature of the Constitution which can neither be tinkered with nor eroded. Even the Constitution cannot be amended to erode the basic structure of the Constitution. Therefore, it cannot be said that the writ petition filed by respondent Nos. 6 to 9 under Article 226 of the Constitution is not maintainable. However, it is left to the discretion of the court exercising the power under Articles 226/227 to entertain the writ petition." 8. In view of the facts of the present case, though the communication dated 1 April, 2021 issued by the SDM Rampur Maniharan (annexed as annexure no.4 to the writ petition), prima facie indicates doubt as to the eligibility of respondent no.10 to contest the election of Gram Pradhan, at the same time, it would be wholly premature to reach a conclusion against the said respondent acting solely on that material. Submission and acceptance of nomination at the election was subject matter of compliances and rules of eligibility that ought to have been properly examined, in the first place, at the time of submissions and acceptance of such nomination. Second, in face of elaborate challenge procedure provided under the Act through an election petition wherein an elaborate evidence may be led, it would be desirable to allow such challenge to exist and arise as contemplated by the Act. 9. The writ jurisdiction may be exercised to upset the concluded proceeding of an election only in the rarest of the rare cases. For the purposes of satisfaction of that test, it may remain most relevant as exceptional circumstances exist to adopt such course and/or if the relief sought may not be available at any other forum. In the present facts, the document on the basis of which the ground has been set up is dated 01.04.2021. In view of the statutory provision noted above, the petitioner has/had a remedy to approach the election Tribunal with a proper election petition. 10. Leaving that course open, if it survives, I do not find it a fit case to exercise extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. Leaving the issue on merits open, interference prayed is declined. 11. Accordingly, the writ petition is dismissed.