Soni Devi vs State of U.P.

Ran Vijai Singh, J. - Heard Sri A.P. Srivastava, learned counsel for the petitioner, learned standing counsel for the State-respondents, Sri S.I. Siddiqui, learned counsel for respondent no. 2 and Sri Ramesh Rai along with Sri Shailendra Kumar Pathak, learned counsel for respondent no. 6.

By means of this writ petition, prayer has been made to issue writ of certiorari quashing the order dated 22.9.2016 passed by Assistant Election Officer, Bhatpar Rani, District Deoria holding the petitioner ineligible for contesting the election of Pradhan.

While assailing this order learned counsel for the petitioner has submitted that the petitioner has been held ineligible totally on frivolous ground by observing that the petitioner has not filed no dues certificate. The contention is that the Tehsildar on 19.9.2016 has given a report that there are no public dues to be recovered from the petitioner and certificate to this effect was also issued on 20.9.2016 to the petitioner. He further submits that the petitioner has been held ineligible only with a view to get declare the respondent no. 6 as uncontested. In the submissions of Sri Srivastava, the candidature of respondent no. 6 is void ab initio for the reasons the he was not 21 years of age on the date of filing of nomination papers. In his submissions, it is fundamental right of the petitioner to participate in the election and he has illegally been deprived of with a view to providing benefit to respondent no. 6. In his submissions, the impugned order deserves to be quashed and the petitioner may be allowed to participate in the election, which is schedule to be held on 30.9.2016. In support of his submissions, he also placed reliance upon the judgement of this Court in <&iuml;><&szlig;>Smt. Shyam Sakhi and others v. State Election Commission, U.P., 2000 (4) AWC 2786 (2000) 3 UPLBEC 2097</&szlig;</&iuml; and <&iuml;><&szlig;>Smt. Meenu v. IIIrd Additional District and Sessions Judge, Kanpur Dehat and others, 2001 (92) RD 551.</&szlig;</&iuml;

Refuting the submissions of learned counsel for the petitioner, Sri Siddiqui, who appears for the Commission as well as Sri Ramesh Rai, learned counsel for respondent no. 6 have submitted that this writ petition is not maintainable after commencement of the election proceeding and the petitioner''s only remedy is to file election petition under section 12-C-1-(b)(i) of U.P. Panchayat Raj Act. It has further been submitted that in view of Rule 72 of U.P. Panchayat Raj Rules (Election of Members, Pradhan & Up-Pradhan) Rules, 1994 (in short Rules, 1994) the respondent no. 6 stood declared as elected Pradhan as in view of the aforesaid Rule once the Nirwachan Adhikari finds that there is only one contesting candidate he shall forthwith declare him to be duly elected, and sent a report to the District Magistrate mentioning the name of the candidate declared elected. In their submissions, as soon as the petitioner was declared ineligible for contesting the election, the respondent no. 6 stood declared as Pradhan, therefore, also the writ petition at this stage cannot be entertained and the petitioner''s only remedy is to file election petition.

They have also invited attention of this Court towards Article 243- F(2) of the Constitution of India. In their submissions, once any question arises as to whether a member of a Panchayat has become subject to any of the disqualifications mentioned in clause (1) Article 243-F, the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide. In their submissions, there is a specific provision under section 6-A of U.P. Panchayat Raj Act for testing the disqualifications of a member, Pradhan or Up-Pradhan. They also invited attention of this Court towards Article 243-O and taking shelter of Article 243-O (b) submitted that no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any Law made by the Legislature of a State. In their submissions, in view of Rule 72 of Rules 1994, since the respondent no. 6 stood declared as Pradhan in absence of any contest, therefore only remedy for the petitioner is to file election petition.

I have heard learned counsel for the parties and considered their submissions.

I have also gone through the Rules 72 of Rules 1994 and Rules 17 of Rules 1994 on which reliance has been placed by learned counsel for the petitioner. The constitutional mandate as contained under Article 243-O(b) is that, no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any Law made by the Legislature of a State. Herein this case under the U.P. Panchayat Raj Act there is specific provision under section 12-C-1(b)(i) of the Act to challenge the election if any nomination paper has illegally been rejected or improperly accepted.

Sri Srivastava taking shelter of decisions of this Court in the case of <&iuml;><&szlig;>Smt. Shyam Sakhi and others v. State Election Commission</&szlig;</&iuml; and <&iuml;><&szlig;>Smt. Meenu v. IIIrd Additional District and Sessions Judge, Kanpur Dehat and others</&szlig;</&iuml;, (supra) has submitted that the writ petition should be entertained, if the election of returned candidate is void, under Article 226 of the Constitution of India if the petition has been filed with allegation that the election is void. In his submissions, since the respondent no. 6 was not of 21 years of age on the date of filing of nomination paper, therefore his election would be void.

In this regard other side have submitted that the argument of learned counsel for the petitioner is based upon the voter list printed in January, 2015 (whereas according to the submission of learned counsel for the petitioner it was printed in October, 2015) and on the date of nomination the petitioner has completed the age of 21 years and 8 months.

Be that as it may, challenge on the ground of age is rebuttable and that cannot be gone into under Article 226 of the Constitution of India as it would require factual adjudication.

So far as the cases relied upon by the petitioner is concerned, in those cases the petitioners have approached the Court after declaration of their result, therefore, facts involved in those cases are distinguishable. Looking into the stage of filing of the writ petition where the election process has started and constitutional mandate under Article 243-O(b) and section 12-C-1(b)(i) of the Act, I do not find it to be a fit case to be interfered with under Article 226 of the Constitution of India.