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2024 DIGILAW 1999 (ALL)

Poonam Maurya v. State of Uttar Pradesh

2024-09-04

CHANDRA KUMAR RAI

body2024
JUDGMENT : CHANDRA KUMAR RAI, J. 1. Heard Mr. Dhirendra Kumar Singh Rathor/Mr. Madhur Prakash, learned counsel for the petitioner, learned standing counsel for the state-respondents, Mr. Harish Chandra Dwivedi and Mr. Navneet Singh, holding the brief of Mr. D.K. Dwivedi, learned counsel for respondent no. 7. 2. Brief facts of the case are that petitioner was elected as Gram Pradhan of the Gram Panchayat Dhanauri, Block & Tehsil Swar, District Rampur in pursuant to the election held on 15.4.2021. In respect to the aforementioned election, an election petition under Section 12-C of the Uttar Pradesh Panchayat Raj Act, 1947 (hereinafter referred to as the “Act”) has been filed by respondent no. 7/Smt. Shobha Rani before the Sub Divisional Magistrate/ Prescribed Authority, on the ground that the petitioner was not eligible for contesting the election of Gram Pradhan. The Prescribed Authority framed 11 issues in the election petition. An application was filed to decide the issue nos. 1, 3 & 5 as preliminary issues. The petitioner filed reply to the election petition, denying the allegation made in the election petition, stating that petitioner was not holding the post of Shiksha Mitra at the time of filing her nomination. The petitioner also filed her objection to the application filed by the election petitioner to decide the issue nos. 1, 3 & 5 as preliminary issues. The Prescribed Authority/S.D.M. vide order dated 28.7.2023 allowed the election petition and declared the election of the petitioner for the post of Gram Pradhan as void. The Prescribed Authority has also declared the post of Gram Pradhan vacant in respect to gram panchayat Dhanauri, Block and Tehsil Swar, District Rampur. The petitioner challenged the order of the Prescribed Authority dated 28.7.2023 by way of revision under Section 12-C(6) of the Act before the District Judge which was registered as Revision No. 24 of 2023, wherein specific ground was taken that election petition was not presented by election petitioner herself, as such, the election petition cannot be entertained. Respondent no. 7/Smt. Shobha Rani also filed a revision which was registered as Revision No. 26 of 2023 with the prayer that after declaring the election of the petitioner as void, respondent no. 7 should be declared elected as Gram Pradhan as respondent no. 7 was on 2nd position in the election held on 15.4.2021. Respondent no. 7/Smt. Shobha Rani also filed a revision which was registered as Revision No. 26 of 2023 with the prayer that after declaring the election of the petitioner as void, respondent no. 7 should be declared elected as Gram Pradhan as respondent no. 7 was on 2nd position in the election held on 15.4.2021. The revisional court/District Judge vide order dated 9.1.2024 dismissed both the revisions, hence, this writ petition has been filed for the following reliefs: (i) issue a writ, order or direction in the nature of certiorari quashing the impugned judgment and order dated 28.07.2023 (Annexure No. 1) passed by the respondent no. 3, Prescribed Authority/Court of Sub-Divisional Magistrate, Tehsil Swar, District Rampur of Moradabad Division, in Case No. 2194/Computerized Case No. T2021135902194 of 2021 (Smt. Sobha Rani Vs. Smt. Poonam Maurya and others) and judgment and order dated 09.01.2024 (Annexure No. 2) passed by respondent no. 2/Revising Authority/District Judge, Rampur in Civil Revision No. 24 of 2023 (CNR No. UPRPO10059852023 Smt. Sobha Rani W/o Sanjai Kumar and others) respectively and calling for records of the case. (ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents to treat the petitioner not being in service in any manner from the date of tendering her resignation dated 23.03.2021 (Annexure No. 8 to the writ petition). 3. This Court vide order dated 4.3.2024 entertained the matter, issued notice to respondent nos. 8 to 15 as respondent no. 7 was represented by the counsel. All the respondents were directed to file counter affidavit in the matter. In pursuance of the order dated 4.3.2024, respondent no. 7 has filed her counter affidavit as well as learned standing counsel has also filed his counter affidavit. Petitioner has filed his rejoinder affidavit in the matter. 4. Learned counsel for the petitioner submitted that election petition under Section 12-C of the Act should be filed by the election petitioner himself/herself as provided under Section 12-C(3) of the Act as well as Section 81(1) of the Representation of the People Act, 1951. He further submitted that if the election petition has not been presented by the election petitioner herself, the election petition cannot be entertained. He submitted that the other claim set up in the election petition by respondent no. He further submitted that if the election petition has not been presented by the election petitioner herself, the election petition cannot be entertained. He submitted that the other claim set up in the election petition by respondent no. 7 was also misconceived as petitioner was not Shiksha Mitra at the time of filing of her nomination for the post of Gram Pradhan. He placed the provisions contained under Section 12-C(3) of the Act as well as Section 81 of the Representation of the People Act, 1951 in support of his arguments. He further placed the Full Bench decision of this Court, reported in 2020 (6) ADJ 134 , Sumitra Devi vs. Special Judge/Addl. District & Sessions Judge, E.C. Act, Hardoi and Others in order to demonstrate that non-compliance of Section 12-C(3) of the Act would be fatal and incurable. He further placed reliance upon the judgment of Hon’ble Apex Court reported in 2009 (0) Supreme (SC) 1438, G.V. Sreerama Reddy and Another vs. Returning Officer and Others in which the Hon’ble Apex Court has held that Section 81(1) of the Representation of the People Act, 1951 provides for presentation of election petition by any candidate/elector relating to the election personally to the authorized officer of the High Court and failure to adhere to such course would be contrary to said provision and in that event the election petition is liable to be dismissed on the ground of improper presentation. He submitted that in revision filed by the petitioner under Section 12-C(6) of the Act, the specific ground was taken that the election petition was not presented by respondent no. 7 herself, as such, the election petition filed by respondent no. 7 cannot be entertained and allowed by the Prescribed Authority but the revisional court has dismissed the revision on misconceived grounds. He submitted that non-presentation of the election petition by the election petitioner according to the provisions of Section 12-C(3) of the Act is an incurable defect, as such, the election petition was liable to be dismissed by the Prescribed Authority but the same has been illegally allowed and the vacancy for the post of Gram Pradhan has been declared vacant under the impugned order. He submitted that during pendency of the instant petition, the notification has been issued for the election on the vacant post of Gram Pradhan which has been challenged by the petitioner in the connected Writ (C) No. 23765 of 2024. He submitted that this Court while hearing the instant writ petition, has passed a detailed order on 6.8.2024, directing that the result of the election of the Pradhan in respect of the gram panchayat concerned shall not be declared till further orders of this Court, as such, the instant petition be heard and disposed of on merit in accordance with law. 5. On the other hand, learned standing counsel and the learned counsel appearing for respondent no. 7 submitted that due to notification issued on 15.7.2024 for holding the election on the vacant seat of gram panchayat concerned, the instant writ petition has become infructuous. They further submitted that election petition was filed according to the provisions contained under Section 12-C(3) of the Act by respondent no. 7 herself, as such, there is no illegality in the impugned judgment/ order passed by the Prescribed Authority/S.D.M. for declaring the election of the petitioner as void. They also submitted that no objection was raised by the petitioner before the Prescribed Authority regarding presentation of the election petition, as such, the petitioner cannot raise the objection regarding the presentation of the election petition in the revision filed by the petitioner under Section 12-C(6) of the Act. They further submitted that in the case of Sumitra Devi (supra), it has been held that objection relating to presentation of election petition, should be raised at the very initial stage before the Prescribed Authority otherwise it shall be deemed that the plea has been waived by the party concerned. They also submitted that the petitioner was holding the post of Shiksha Mitra, as such, she cannot contest the election for the post of Gram Pradhan. They further submitted that considering the entire facts on record, the Prescribed Authority has allowed the election petition and declared the election of the petitioner as void. They submitted that the record demonstrates that respondent no. 7 was very much present before the Prescribed Authority at the time of presentation, as such, there was no defect in the presentation of election petition. They submitted that the record demonstrates that respondent no. 7 was very much present before the Prescribed Authority at the time of presentation, as such, there was no defect in the presentation of election petition. They submitted that no interference is required against the impugned judgment/order and the writ petition is liable to be dismissed. 6. In reply, counsel for the petitioner submitted that plea relating to presentation of election petition will go to the root of the matter which is pure legal plea in the election law, as such, the same can be raised at any stage. He placed following case law of Hon’ble Apex Court in support of his argument: (i) Paul Industries (India) vs. Union of India and Others, (2004) 13 SCC 340 (ii) The National Textile Corporation Ltd. vs. Nareshkumar Badrikumar Jagad & Others, 2011 (0) Supreme (SC) 862 (iii) M/s Sanghvi Reconditioners Pvt. Ltd. vs. Union of India and Others, AIR 2010 SC 1089 (iv) Tarinikamal Pandit and Others vs. Perfulla Kumar Chatterjeet (Dead) by LRs. 1979 (0) Supreme (SC) 37 (v) Ajaib Singh vs. State of Punjab, 2000 (3) Supreme 367 (vi) Collector of Central Excise, Ahmedabad vs. Pioma Industries and Imperial Soda Factory, 1997 (0) Supreme (SC) 106 7. I have considered the arguments advanced by learned counsel for the parties and perused the records. 8. There is no dispute about the fact that petitioner was elected as Gram Pradhan of the gram panchayat concerned. There is also no dispute about the fact that in the election petition filed by respondent no. 7, the election of the petitioner was declared void and vacancy for the post of Gram Pradhan in respect to the gram panchayat concerned was declared vacant. There is also no dispute about the fact that the revision filed by the petitioner as well as respondent no. 7 against the order of the Prescribed Authority has been dismissed by the District Judge vide order dated 9.1.2024. 9. There is also no dispute about the fact that the revision filed by the petitioner as well as respondent no. 7 against the order of the Prescribed Authority has been dismissed by the District Judge vide order dated 9.1.2024. 9. In order to appreciate the issue involved in the mater, perusal of Section 12-C of the Act and Section 81 of the Representation of the People Act, 1951 will be necessary which are quoted hereunder: “12-C. 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 prescribed 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. (b) that the result of the election has been materially affected: (i) by the improper acceptance or rejection of any nomination. (ii) by gross failure to comply with the provisions of this Act or the rules framed thereunder. (2) The following shall be deemed to be corrupt practices of bribery or undue influence for the purposes of this Act. (A) Bribery, that is to say, any gift, offer or promise by a candidate or by any other person with the connivance of a candidate of any gratification of any person whomsoever, with the object, directly, or indirectly of including: (a) a person to stand or not to stand as, or withdraw from being, a candidate at any election. (b) an elector to vote or refrain from voting at an election; or as a reward to: (i) a person for having so stood or not stood or having withdrawn his candidature. (ii) an elector for having voted or refrained from voting. (B) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of a candidate or of any other person with the connivance of the candidate with the free exercise of any electoral right. (ii) an elector for having voted or refrained from voting. (B) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of a candidate or of any other person with the connivance of the candidate with the free exercise of any electoral right. Provided that without prejudice to the generality of the provisions of this clause any such person as is referred to therein who: (i) threatens any candidate, or any elector, or any person in whom a candidate or any elector is interested, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community. (ii) induces or attempts to induce a candidate or an elector to believe that he or any person in whom he is interested will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause. (3) This application under sub-section (1) may be presented by any candidate at the election or any elector and shall contain such particulars as may be prescribed. Explanation - Any person who filed a nomination paper at the election whether such nomination paper was accepted or rejected, shall be deemed to be a candidates at the election. (4) The authority to whom the application under sub-section (1) is made shall in the matter of: (i) hearing of the application and the procedure to be followed at such hearing. (ii) setting aside the election, or declaring the election to be void or declaring the applicant to be duly elected or any other relief that may be granted to the petitioner, have such powers and authority as may be prescribed. (5) Without prejudice to generality of the powers to be prescribed under subsection (4) the rules may provide for summary hearing and disposal of an application under sub-section (1). (6) Any party aggrieved by an order of the prescribed authority upon an application under sub-section (1) may, within thirty days from the date of the order, apply to the District Judge for revision of such order on any one or more the following grounds, namely: (a) that the prescribed authority has exercised a jurisdiction not vested in it by law. (b) that the prescribed authority has failed to exercise a jurisdiction so vested. (c) that the prescribed authority has acted in the exercise of its jurisdiction illegally or with material irregularity. (7) The District Judge may dispose of the application for revision himself or may assign it for disposal to any Additional District Judge, Civil Judge or Additional Civil Judge under his administrative control and may recall it from any such officer or transfer it to any other such officer. (8) The revising authority mentioned in sub-section (7) shall follow such procedure as may be prescribed, and may confirm, vary or rescind the order of the prescribed authority or remand the case to the prescribed authority for re-hearing and pending its decision pass such interim orders as may appear to it to be just and convenient. (9) The decision of the prescribed authority, subject to any order passed by the revising authority under this section, and every decision of the revising authority passed under this section, shall be final. Section 81. Presentation of petitions: (1) An election petition calling in question any election may be presented on one or more of the grounds specified in [sub-section (1)] of section 100 and section 101 to the [High Court] by any candidate at such election or any elector [within forty-five days from, but not earlier than the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates]. Explanation - In this sub-section, “elector” means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not. (3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.” 10. The perusal of the provisions as quoted above, demonstrate that election petition has to be given or filed by any candidate of the election. The provision further provides that presentation of the election petition by the advocate of the candidate or his clerk is not permissible unless election petitioner is present in person. 11. The perusal of the provisions as quoted above, demonstrate that election petition has to be given or filed by any candidate of the election. The provision further provides that presentation of the election petition by the advocate of the candidate or his clerk is not permissible unless election petitioner is present in person. 11. The perusal of Rule 3 of the Uttar Pradesh Panchayat Raj (Settlement of Election Disputes) Rules, 1994 will be relevant which is quoted hereunder: 3. Election Petition: (1) An application under sub-section (1) of Section 12-C of the Act shall be presented before the Sub-Division Officer, within whose jurisdiction the concerned Gram Panchayat lies, within ninety days after the day on which the result of the election questioned is announced and shall specify the ground or grounds on which the election of the respondent is questioned and contain a summary of the circumstances alleged to justify the election being questioned on such ground: Provided that no such application shall be entertained unless it is accompanied by a treasury challan to show that the amount of rupees fifty has been deposited in the Personal Ledger Account of the Gram Panchayat concerned as security. (2) The person whose election is questioned and where the petition claims that the petitioner or any other candidates shall be declared elected in place of such person, every unsuccessful candidate shall be made a respondent to the application. (3) Every respondent may give evidence to prove that any person in respect of whom a claim is made that such person be declared elected, should not be declared so elected on the same ground or ground on which his election could have been questioned if he had been elected. 12. The perusal of the Rule quoted above, provides that the S.D.O. who is to discharge his duty as Prescribed Authority should record about the presence of the election petitioner at the time of presentation of the election petition. 13. The issues which were framed before the Prescribed Authority will be relevant for perusal which are as under: 14. The issue regarding presentation of election petition under Section 12-C of the Act has already been examined by Full Bench of this Court in the case of Sumitra Devi (supra). The Full Bench has answered the issue which was referred in the following manner: 81. The issue regarding presentation of election petition under Section 12-C of the Act has already been examined by Full Bench of this Court in the case of Sumitra Devi (supra). The Full Bench has answered the issue which was referred in the following manner: 81. Based on the discussion made, and subject to it, we summaries our answers to the questions referred to us (as rephrased by us), as under: 1...... (a) An Election Petition under Section 12-C(1) and (3) of the Act, 1947 has to be necessarily and mandatorily presented by the candidate/Election petitioner himself, personally, if it is in his name. However, if it is presented by the Advocate or his clerk, in the presence of the candidate/ Election Petitioner before the Prescribed Authority, it would be sufficient compliance of Section 12-C(3). (b) In the event an election petition is not presented as aforesaid then it would be fatal and an incurable defect which has to result in dismissal of the petition by the Prescribed authority with liberty however, to the candidate to file a fresh petition, if the limitation is still available and before it expires, in accordance with Section 12-C(3), personally, or by his Advocate or Clerk in his presence. He can not adjourn the matter to some other date for rectification of the incurable defect in those proceedings. 2. The decision in Lal Bahadur Singh's case (supra) does not lay down the law correctly as regards Question No. 1. The decision in Viresh Kumar Tiwari's case (supra) lays down the law correctly subject to the proposition that an election petition filed by the Advocate or his Clerk in presence of the candidate before the Prescribed Authority is also in accordance with section 12-C (3) of the Act 1947. In Urmila's case (supra) Question No. 1 has not been decided. 15. The perusal of the issue answered by the Full Bench in Sumitra Devi (supra) as quoted above fully demonstrates that the election petition under Section 12-C (1) & (3) of the Act has to be necessarily and mandatorily presented by the candidate/election petitioner himself/herself personally if it is in his/her name. However, if it is presented by advocate or his clerk in presence of the candidate/election petitioner before the Prescribed Authority which would be sufficient compliance of Section 12-C(3) of the Act. However, if it is presented by advocate or his clerk in presence of the candidate/election petitioner before the Prescribed Authority which would be sufficient compliance of Section 12-C(3) of the Act. The answer as quoted above further demonstrates that if the election petition is not presented as aforesaid, then it would be fatal and incurable defect which has to result in dismissal of the petition by the Prescribed Authority with liberty to the candidate to file fresh petition if the limitation is still available before it expires in accordance with the provisions of Section 12-C(3) of the Act personally or by his advocate or clerk in his presence. 16. In paragraph no. 74 of the judgment of the Full Bench in Sumitra Devi (supra), it has been held that any objection regarding non-presentation of the election petition by a candidate as aforesaid should be raised at the earliest when the trial is pending before the Prescribed Authority and not after disposal of the election petition, such as, at the revisional stage or before the High Court as if the objection is not raised during trial, a specific issue cannot be framed in this regard and the parties would not be able to lead evidence in respect to it as well as if the objection is raised at a later stage, evidence may not be available by then or the officer before whom the petition was presented. It has been also held by the Full Bench in the same paragraph that once there is adjudication of election petition on merit, then it would be highly inequitable to allow such a plea or objection to be raised at the revisional level or before the High Court under Article 226 of the Constitution when the election petition has succeeded and it will be treated that objection regarding presentation of the election petition has been waived by the party concerned. The paragraph no. 74 of the judgment rendered in Sumitra Devi (supra) is as under: “74. We are also of the view that any objection regarding non-presentation of an Election Petition by a candidate as aforesaid should be raised at the earliest when the trial is still pending before the Prescribed Authority and not after disposal of the Election Petition such as at the Revisional stage or before the High Court. We are also of the view that any objection regarding non-presentation of an Election Petition by a candidate as aforesaid should be raised at the earliest when the trial is still pending before the Prescribed Authority and not after disposal of the Election Petition such as at the Revisional stage or before the High Court. This is for the reason firstly, if not raised during trial a specific issue can not be framed in this regard and the parties would not be able to lead evidence in respect to it, secondly, if raised at a later stage evidence may not be available by then or the Officer before whom the petition was presented may himself not be available. Thirdly, once there is an adjudication of the Election petition on merits, then, it will be highly inequitable to allow such a plea or objection to be raised at the Revisional level or before the High Court under Section 226 of the Constitution, especially when, the Election Petition has succeeded. It will therefore have to be treated as waived, as has been held in Devendra Yadav's case (supra).” 17. In the instant matter, the objection regarding presentation of the election petition has admittedly not been raised during trial before the Prescribed Authority, accordingly, the issue was not framed before the Prescribed Authority. The objection regarding presentation of the election petition for the first time has been taken in revision after conclusion of trial by the Prescribed Authority by which the election petition was allowed and the election of the petitioner was held to be void. 18. In view of the ratio of law laid down by the Full Bench of this Court in Sumitra Devi (supra), there is no illegality in the impugned order passed by respondent no. 3/Prescribed Authority/Sub Divisional Magistrate. 19. The writ petition is dismissed. 20. Interim order granted earlier by this Court on 6.8.2024 by which declaration of election result was stayed, stands vacated. 21. No order as to costs. 22. The Registrar (Compliance) is directed to communicate this order to respondent no. 5/District Election Officer/District Collector, District Rampur, forthwith.