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2024 DIGILAW 761 (ALL)

Sazid v. State of U. P.

2024-03-11

ROHIT RANJAN AGARWAL

body2024
JUDGMENT Rohit Ranjan Agarwal, J. The petitioner before this Court is a returned candidate. He is aggrieved by order passed by Revising Authority passed in Civil Revision No. 76 of 2022 filed under Section 12-C(6) of U.P. Panchayat Raj Act, 1947 (hereinafter called as "Act of 1947"). 2. An election petition was preferred by respondent no. 2/election petitioner before Prescribed Authority on the ground that the nomination papers of petitioner were wrongly accepted. Various other grounds were raised in the election petition by election petitioner, such as, pendency of a criminal case against the returned candidate which was not disclosed and also taking of loan by returned candidate from one Magma Fincorp Ltd., Bareilly. It was further averred in the election petition that the age was wrongly disclosed. 3. The Prescribed Authority without touching the merits of the election petition on the objection raised by returned candidate that affidavit filed to the election petition was not verified proceeded to dismiss the election petition on 03.09.2022. Aggrieved by the order, the election petitioner filed a Civil Revision No. 76 of 2022 before Additional Sessions and District Judge, Court No. 3, Moradabad which was allowed by order dated 18.01.2024 and the election of returned candidate/petitioner was set aside and election petitioner/respondent no. 2 was declared elected Pradhan. Aggrieved by the order of Revisional Authority, the present writ petition has been preferred. 4. Sri. Udayan Nandan, learned counsel for the petitioner submits that the Revisional Authority exceeded its jurisdiction by declaring the election petitioner as an elected Pradhan and setting aside the order passed by Prescribed Authority. He admits that defect as pointed out by Prescribed Authority was a curable defect and Revisional Authority to that extent was correct but it should have remanded back the matter to Prescribed Authority and should not have dealt with the election petition itself. Reliance has been placed upon decision of Apex Court rendered in case of Mangani Lal Mandal v. Bishnu Deo Bhandari, (2012) 3 SCC 314 . 5. Opposing the writ petition, Sri. Siddharth Nandan, learned counsel appearing for respondent no. 2 submits that the returned candidate had wrongly disclosed his age while submitting nomination papers and it was illegally accepted. Reliance has been placed upon decision of Apex Court rendered in case of Mangani Lal Mandal v. Bishnu Deo Bhandari, (2012) 3 SCC 314 . 5. Opposing the writ petition, Sri. Siddharth Nandan, learned counsel appearing for respondent no. 2 submits that the returned candidate had wrongly disclosed his age while submitting nomination papers and it was illegally accepted. He further submits that a criminal case bearing Case Crime No. 42 of 2020, under Section 4, 6, 6ka and 9 of U.P. Prevention of Cow Slaughter Act, under Section 11gha of Prevention of Cruelty to Animals Act and under Section 66/192 of Motor Vehicle Act, Police Station- Mohkhed, District-Chhindwada, M.P. is pending consideration against returned candidate. The said fact has not been disclosed in the affidavit filed before Election Commission. According to respondent counsel, the returned candidate had taken a loan from Magma Fincorp Ltd., Bareilly which has also not been disclosed in the form filed for the election. According to him, the Prescribed Authority without touching any of the issues on the technical basis rejected the election petition. He has relied upon the decision of co-ordinate Bench of this Court in case of Lavdhar Maurya v. State of U.P. and others, 2017 (5) ADJ 517 . He further contends that the Revisional Authority has the power not only to confirm the order of Prescribed Authority but also to vary and rescind the same. According to him, the power of the Revising Authority is wide enough not only to declare the election of returned candidate as void but also to declare the election petitioner as the winning candidate. According to him, the power under Section 12-C(6) is wide enough and Revising Authority can decide the election matter itself. He has also placed reliance upon decision of Apex Court rendered in case of A. Manju v. Prajwal Revanna @ Prajwal R. & others, 2022 AIR (SC) 196. 6. I have heard respective counsel for the parties and perused the material on record. 7. The short point for consideration before this Court is as to whether the Revising Authority was correct in declaring the election petitioner as Pradhan while allowing the election petition and declaring the election of petitioner as void. 8. It is an admitted case to both the parties that the election petition was preferred on the ground of illegal acceptance of nomination paper. 8. It is an admitted case to both the parties that the election petition was preferred on the ground of illegal acceptance of nomination paper. In the election petition, various grounds were raised by election petitioner as to the filing of nomination paper by returned candidate such as his non declaration of criminal case, taking of loan from Private Finance Company as well as the incorrect disclosure of date of birth. 9. The Prescribed Authority without framing any issue proceeded to dismiss the election petition on a technical ground that affidavit filed in support of the election petition was not verified. The defect as pointed out was a curable defect and the Prescribed Authority should not have decided the election petition in a cursory manner ousting the case of election petitioner without dealing with the issues raised before it. 10. Coming to the order of Revising Authority, I find that once the election petitioner was successful to the extent that Prescribed Authority was not correct in rejecting the election petition it was proper on his end to remand back the matter to Prescribed Authority and should not have allowed the revision in a cursory manner. In case, the Revising Authority had proceeded with the mater, it should have dealt the matter issue wise and should have recorded finding on each and every point canvassed and raised by election petitioner as well as the returned candidate. 11. From reading of the judgment passed by Revising Authority, I find that while finding the defect of non verification of the affidavit, which was curable defect, it proceeded to allow the election petition on the ground that affidavit which was filed as an evidence by election petitioner proved the case against the returned candidate and held the election petitioner to be the winning candidate and declared him Pradhan and declared the election of returned candidate as void. I find that revisional court in its exuberance had proceeded to hold the election petitioner as Pradhan without recording any finding to the election petition while allowing the same. 12. In view of said fact, this Court finds that both the orders passed by Prescribed Authority dismissing the election petition in a cursory manner on 03.09.2022 and the order passed by Revising Authority on 18.01.2024 are unsustainable in the eyes of law and both the orders are hereby set aside. 13. 12. In view of said fact, this Court finds that both the orders passed by Prescribed Authority dismissing the election petition in a cursory manner on 03.09.2022 and the order passed by Revising Authority on 18.01.2024 are unsustainable in the eyes of law and both the orders are hereby set aside. 13. The matter is remanded back to Prescribed Authority with following directions:- (i) The Prescribed Authority shall proceed with election petition afresh on the basis of the material which has already been brought before it. (ii) The Prescribed Authority shall proceed to frame issues in the matter, within 15 days from the date of production of certified copy of this order. Thereafter, it will record the documentary and oral evidences laid by both the parties and conclude the hearing in the matter, within next two months. (iii) With a outer limit of three months, the Prescribed Authority shall decide the election petition of election petitioner/respondent no. 2 in pursuance of Uttar Pradesh Panchayat Raj (Settlement of Election Disputes) Rules, 1994. With the aforesaid directions, writ petition stands disposed of.