Court No. - 40
Case :- WRIT - C No. - 74304 of 2010 Petitioner :- Aarti Devi Respondent :- State Of U.P. And Others Counsel for Petitioner :- Dharmendra K. Tripathi,Indra Bhan Singh Counsel for Respondent :- C.S.C.,D.K.Chaubey,Gopal Srivastava,P.K.Mishra,S.K. Singh
Hon'ble Amreshwar Pratap Sahi,J. Hon'ble Shashi Kant,J.
Heard Sri Sudhir Tripathi, Advocate holding brief of Sri Dharmendra Kumar Tripathi, learned counsel for the petitioner and learned Standing Counsel for the State of U.P.
A prayer for adjournment has been made but we are not inclined to grant any adjournment for the reason that this writ petition was filed for a writ of quo-warranto restraining the respondent no. 5 to not function as a member of the Block Development Committee. The ground of challenge was that the respondent no. 5 on the date of her election was minor.
The writ petition was entertained on 23.12.2010, whereafter, a detailed order was passed on 10.01.2011 which is to the following effect :-
"Heard counsel for the petitioner, Sri Dinesh Kumar Chaubey holding brief of Sri Gopal Srivastava is present for the respondent no.5 and Sri Satendra Kumar Singh is present for the election official.
Prayer in this petition is for issuance of a writ in the nature of quo warranto and to restrain the respondent no.5 from functioning as Member of Block Development Committee (Kshetra Panchayat).
Challenge is on the ground that on the date of nomination i.e. 7th October, 2010 the respondent no.5 was not of the age as required, as her date of birth is 10.12.1992.
On 23.12.2010 when the matter was entertained, learned standing counsel was directed to obtain instructions and correct information about the date of birth of respondent no.5 from High School and Intermediate Board record.
On 23.12.2010 itself counsel for the respondent no.5 was also directed to obtain instructions and if so required to file counter affidavit.
Although Sri Dinesh Kumar is present for the respondent no.5 but neither any counter affidavit is filed nor any submission is to rebut the allegations of the petitioner.
Today when the matter was taken up, the record of the High School and Intermediate Board was placed/shown from which it transpires that the date of birth of the respondent no.5 is mentioned as 10.12.1992 and this information was given to the petitioner under the R.T.I. Act also.
In support of the submission that the respondent no.5 was ineligible to contest the election, and she lacks inherent eligibility, and thus she has no right to occupy the post and she can be restrained from functioning as such by entertaining the writ and by issuing appropriate writ of quo warranto, reliance has been placed on the decision given by the Apex Court in the case of K. Venkatachalam reported in AIR 1999 SC 1723 and judgement of this Court given in the case of Meera Devi reported in 2010 R.D. 467.
Submission is that if the respondent no.5 is found to be not eligible to contest the election and hold the post, then in such a situation writ of quo warranto will lie. If it is found that holder of the office has no right he should be ousted from the office by a judicial order. It was then submitted that a person can avail the remedy of writ of quo warranto by satisfying the Court that the office in question is a public office and the same is held by the person without legal authority.
Lastly, it is submitted that election of a returned candidate may not be under challenge in a writ of quo warranto but the continuance of such a person in that capacity in the office can be a matter of challenge and a writ of quo warranto would lie.
Here is a case where the date of birth/age of the respondent no.5 is prima facie found to be below the age of 18 years on the date of nomination.
In view of the aforesaid, it is pointed out that irrespective of the forum so provided for the purpose, as contention goes to the root of the matter, appropriate order is required to be passed.
Counsel for the respondent no.5 although was given time to obtain instructions and to file counter affidavit, wants further time to file counter affidavit. Other respondents are also to be given time to file counter affidavit before the matter is finally decided.
Let the matter be listed in the week commencing 14th February, 2011.
As interim measure, this Court directs that the till the next date of listing the respondent no.5 will not function as Member, Block Development Committee (Kshetra Panchayat)."
The tenure of election has already expired and the respondent no. 5 had been restrained by this Court from functioning, in this background the matter appears to have become infructuous as the period for which this dispute arose had already come to an end.
The writ petition is accordingly consigned to records.
Order Date :- 28.5.2018 A. Verma