1. Heard Sri Prabhakar Awasthi, learned counsel for the petitioner, Sri Udayan Nandan, learned counsel for respondent no. 4 and Sri S.C. Yadav, learned Standing Counsel for respondent nos. 1,2 & 3. No one appeared on behalf of respondent nos. 5 to 12 who are proforma respondents.
Facts of the Case
2. Briefly stated facts of the present case are that in the election for the post of village Pradhan of village Panchayat "Kasidahan", Block and Tehsil Gyanpur, District Bhadohi held in the year 2015, the petitioner, respondent no. 4 and some other persons filed their nominations. The petitioner was declared elected for the post of village Pradhan. The unsuccessful candidate namely the respondent no. 4 filed an Election Petition No. T 2016166704371 of 2016 under Section 12-C(1) of the U.P. Panchayat Raj Act, 1947 (hereinafter to be referred as the 'Act') before the Prescribed Authority (respondent no. 2) which was dismissed by order dated 30.08.2016 holding that during the pendency of recall application in Writ Petition No. 35946 of 2000 filed by the petitioner challenging the order dated 27.07.2000 for dues of Rs. 1,83,222.83 under Section 27 of the Act, it is not justified to hold the petitioner to be in arrears incurring disqualification under section 5-A(1)(e) of the Act and as such the election petition is not maintainable.
3. Aggrieved with this order, the respondent no. 4-election petitioner filed a revision under Section 12-C(6) of the Act in the court of District Judge, Bhadohi at Gyanpur being Revision No. 48 of 2016 which was allowed by the impugned order dated 11.11.2016. By the aforesaid impugned order, the order of the Prescribed Authority dated 30.08.2016 was set aside and the result of election dated 30.12.2015 for the post of Pradhan of village Panchayat Kasidahan, Tehsil Gyanpur, District Bhadohi was declared to be null and void and was cancelled.
4. Aggrieved with the aforesaid order passed by learned District Judge, Bhadohi dated 11.11.2016, the petitioner (elected Pradhan) has filed the present writ petition.
Submissions of learned counsel for the petitioner:
5. Learned counsel for the petitioner submits as under:
(i) The Revisional Authority has exceeded its jurisdiction to declare the election of the petitioner as Village Pradhan to be null and void on account of alleged disqualification incurred under Section 5A(e) of the U.P. Panchayat Raj Act, 1947 inasmuch as the jurisdiction of the Revisional Authority as provided under Section 12C(6) of the Act is when the Prescribed Authority has either exercised a jurisdiction not vested in it by law or it has failed to exercise jurisdiction so vested or the Prescribed Authority has acted in exercise of its jurisdiction illegally or with material irregularity. He submits that since the election of the petitioner was not held to be null and void by the Prescribed Authority and as such the impugned order of the Revising Authority declaring the election of the petitioner to be null and void, is wholly without jurisdiction.
(ii) Before filing the nomination a 'No Dues Certificate' was issued to the petitioner by the Tehsildar concerned and on that basis, the petitioner has filed his nomination and as such it cannot be said that any information was suppressed so as to result in disqualification under Section 5A(e) of the Act.
(iii) The demand created against the petitioner was under Section 27 of the Act, i.e. the surcharge which does not fall within the ambit of Section 5A(e) of the Act inasmuch as the said demand is neither a tax nor a fee nor rate nor any other dues payable by the petitioner to the Gram Panchayat, Kshetra Panchayat or Zila Panchayat.
(iv) The election petition filed by the respondent No.4 was dismissed by the Prescribed Authority but the revision has been allowed by the Revising Authority under Section 12C(6) of the Act without recording any finding as to how the result of the election, was materially affected on account of improper acceptance of the nomination paper of the petitioner. In the absence of any such finding, the necessary condition of election to be materially affected as provided under Section 12C(1)(b) of the Act, is not satisfied and consequently the impugned order passed by the Revising Authority is unsustainable.
(v) Prescribed Authority has dismissed the election petition merely on the ground of maintainability. Consequently, the Revising Authority under Section 12-C(6) of the Act, has committed a manifest error of law to declare the election of the petitioner to be void.
(vi) The powers of the Revising Authority provided under Section 12-C(8) of the Act is limited to confirm, vary or rescind the order of the Prescribed Authority or remand the case to the Prescribed Authority for rehearing. No power has been conferred upon the revising authority to set aside the election as has been conferred upon the Prescribed Authority under Section 12-C(4)(ii) of the Act. Thus, setting aside of the election of the petitioner by the Revising Authority was beyond jurisdiction.
(vii) Surcharge requires determination under Section 27 of the Act whereas the phrase "any other dues" used in Section 5-A(e) of the Act, does not require any adjudication.
(viii) The question of disqualification as provided under Section 5-A(e) of the Act could have been raised and determined at the time of scrutiny of the nomination as is evident from provisions of Section 6-A of the Act and since it has not been done and as such the election of the petitioner could not have been set aside or declared void by the Revising Authority.
(ix) Since no adjudication was done by the Prescribed Authority on the question of disqualification and as such the proper course for the Revising Authority was to remand the matter.
Submissions of learned counsel for the respondent no. 4 and the State-respondents:
6. Sri Udayan Nandan, learned counsel for respondent no. 4 submits as under:
(i) Earlier also the petitioner was elected as Pradhan against whom a proceeding under Section 27 of the Act was initiated and an order dated 27.07.2000 was passed by the District Magistrate, Sant Ravi Das Nagar, Bhadohi holding him liable for a sum of Rs.1,83,222.83 representing the misappropriation / embezzlement of the amount of the village Panchayat earmarked for development work. Thus, there was dues against the petitioner determined in terms of the provisions of Rule 256(1) read with Rule 257(2) of the U.P. Panchayat Raj Rules, 1947 but the petitioner not only deliberately concealed these facts but also did not deposit it before filing his nomination. Thus, he was disqualified under Section 5-A(e) of the Act.
(ii) Against the aforesaid order under Section 27 of the Act, the petitioner filed a Writ Petition No. 35946 of 2000 in which an interim order was passed but the writ petition was dismissed on 17.05.2011. The nomination was filed by the petitioner on 20.11.2015. Thus, at the time when the petitioner filed the nomination, there was no interim order and the dues against the petitioner were recoverable as arrears of land revenue.
(iii) No 'No Dues Certificates' was issued to the petitioner with respect to the dues under Section 27 of the Act.
(iv) The petitioner being in arrears of the aforesaid dues under Section 27 of the Act read with the relevant Rules, incurred disqualification under Section 5-A(e) of the Act but the nomination paper was filed concealing the fact of the dues. The petitioner was disqualified to contest the election which materially affected the election.
(v) In paragraphs-2, 3, 7 & 8 of the election petition and relief No. (ka), the respondent No. 4 made specific pleadings and prayer with respect to the disqualification of the petitioner but the Prescribed Authority committed gross error in holding that till the recall application in the writ petition is pending, it is not justified to hold that the petitioner to be in arrears.
(vi) In the relevant column of the nomination paper, the petitioner had neither mentioned the facts either with regard to the dues determined by the aforesaid order dated 27.07.2000 nor he mentioned even a word about the filing of the writ petition or the grant of interim order or its dismissal.
(vii) The powers of the Revising Authority under Section 12-C(6) of the Act, are very wide and therefore finding of the Revising Authority that the petitioner was disqualified and his nomination paper was liable to be rejected and that it was improperly accepted, does not suffer from any error of law or fact. The impugned order of the Revising Authority is well within the powers conferred under Section 12-C(6) & (8) of the Act.
(viii) The Revising Authority has correctly not remanded the matter for the simple reason that it was wholly undisputed that the dues of Rs.1,83,222.83 were recoverable from the petitioner as on the date when he filed nomination paper and thus undisputedly he had incurred disqualification under Section 5-A(e) of the Act. Therefore, in the absence of any dispute on the question, no further examination was necessary.
7. Learned Standing Counsel supports the impugned order passed by the revising authority under Section 12-C(6) of the Act.
Questions:
8. Considering the submissions of learned counsels for the parties and with their consent, the following questions have been framed for determination:-
(i) Whether the amount determined by the District Magistrate vide order dated 27.07.2000 under Section 27 of the Act, would fall within the phrase 'any other dues' used under Section 5-A(e) of the Act?
(ii) Whether under the facts and circumstances of the case, the impugned order passed by the Revising authority under Section 12-C(6) of the Act holding the petitioner to be disqualified and his election to be null and void, is beyond the powers conferred under Section 12-C(8) of the Act?
(iii) Whether under the facts and circumstances of the case, the Revising Authority should have remanded the matter to the Prescribed Authority in terms of the provisions of Section 12-C(8) of the Act?
(iv) Whether under the facts and circumstances of the case, disqualification, if any, incurred by the petitioner due to dues against him; had materially affected the election of the village Pradhan in terms of Section 12-C(1) of the Act?
(v) Whether under the facts and circumstances of the case, the impugned order passed by the Revising Authority under Section 12-C(6)/(8) of the Act, is valid?
Discussion and Findings:
9. I have carefully considered the submissions of learned counsels for the parties and perused the record.
10. Undisputed facts of the present case are that the earlier for the period from the year 1995 to 2000, the petitioner was village Pradhan of village Panchayat in question i.e. Kasidahan, Tehsil Gyanpur, District Bhadohi. After his tenure as village Pradhan, an order dated 27.07.2000 under Section 27(1) of the Act was passed by the District Magistrate, Sant Ravidas Nagar (Bhadohi) holding him liable for a sum of Rs. 1,83,222.83 representing the misappropriation/ embezzlement of amount of village Panchayat earmarked for development work.
Relevant Provisions:
11. Section 5-A(e) and 27 of the Act and Rule 259 of the Rules are relevant for the purpose of the questions raised which are reproduced below:
"Section 5-A. Disqualification of membership - A personal shall be deisqualified for being chosen as, and for being, the Pradhan or a member of a Gram Panchayat, if he -
(a) ................
(b) ................
(c) ................
(d) ................
(e) is in arrears of any tax, fee, rate or any other dues payable by him to the Gram Panchayat, Kshettra Panchayat or Zila Panchayat for such period as may be prescribed, or has, in spite of being required to do so by the Gram Panchayat, Kshettra Panchayat or Zila Panchayat failed to deliver to it any record or property belonging to it which had come into his possession by virtue of his holding any office under it;
(f) ................
(g) ................
(h) ................
(i) ................
(j) ................
(k) ................
(l) ................
(m) ................
(n) ................
Provided that the period of disqualification under Clauses (d), (f), (g), (h), (i), (j), (k), (l) or (m) shall be five years from such date as may be prescribed.
Provided further that the disqualification under Clause (e) shall cease upon payment of arrears or delivery of the record of property, as the case may be;
Provided also that a disqualification under any of the clauses referred to in the first proviso may in the manner prescribed, be removed by the State Government.
Section 27. Surcharge - (1) Every Pradhan or Up-Pradhan of a Gram Panchayat every member of a Gram Panchayat or of a Joint Committee or any other committee constituted under this Act and every Sarpanch, Sahayak Sarpanch or Panch of a Nyaya Panchayat shall be liable to surcharge for the loss, waste or misapplication of money or property belonging to the Gram Panchayat or Nyaya Panchayat as the case may be, if such loss, waste or misapplication is direct consequence of his neglect or misconduct while he was such Pradhan, Up-Pradhan, member, Sarpanch, Sahyak Sarpanch or Panch;
Provided that such liability shall cease to exist after the expiration of ten years from the occurrence of such loss, waste or misapplication, or five years from the date on which the person liable ceases to hold his office, whichever is later.
(2) The prescribed authority shall fix the amount of the surcharge according to the procedure that may be prescribed and shall certify the amount to the Collector who shall, on being satisfied that the amount is due, realize it as if were an arrear of land revenue.
(3) Any person aggrieved by the order of the prescribed authority fixing the amount of surcharge may, within thirty days of such order, appeal against the order to the State Government or such other appellate authority as may be prescribed.
(4) Where no proceeding for fixation and realization of surcharge as specified in sub-section (2) is taken the State Government may institute a suit for compensation for such loss, waste or misapplication, against the person liable for the same."
Rule 259(1)- A Pradhan, Up-Pradhan, Member, Officer or servant of a Gaon Panchayat who has been surcharged, shall pay the amount of surcharge within three months from the date of communication to him of the order of surcharge passed by the District Magistrate or the District Panchayat Raj Officer, as the case may be:
Provided that when an appeal has been preferred under Rule 258 against the order of surcharge passed by the District Magistrate or the District Panchayat Raj Officer, all proceedings for recovery of the surcharge from the persons who have preferred the appeal shall be stayed until the appeal has been finally decided.
(2) If the amount of surcharge is not paid within the period specified in sub-rule (1) it shall be recovered as arrears of land revenue.
12. Against the aforesaid order dated 27.07.2000 under Section 27(2) of the Act, the petitioner has not filed an appeal under Section 27(3) of the Act. Instead he filed a writ petition No. 35946 of 2000 challenging the aforesaid order dated 27.07.2000. The said writ petition was dismissed as infructuous by this Court vide order dated 17.05.2011. The nomination paper in the election of village Pradhan in the year 2015 was filed by the petitioner on 20.11.2015. In clause 5 of the affidavit accompanying the nomination paper submitted before the Returning Officer, the petitioner had put cross sign against heading "Government Dues". Neither in his nomination paper nor in the affidavit accompanying the nomination paper, he disclosed any information either with regard to the dues of Rs. 1,83,222.83 created by order dated 27.07.2000 under Section 27 of the Act or the dismissal of the writ petition No. 35946 of 2000 by this Court vide order dated 17.05.2011. Thus, as on the date, when the petitioner filed his nomination paper on 20.11.2015, the arrears of government dues of Rs. 1,83,222.83 created by order dated 27.07.2000 under Section 27(1) of the Act was pending. Thus, in terms of the provisions of Rule 259(2) of the Rules, the aforesaid amount of government dues of Rs. 1,83,222.83 was recoverable from him as arrears of land revenue. This material information was deliberately suppressed by the petitioner in his affidavit accompanying the nomination paper.
13. In view of the afore noted facts, the petitioner incurred disqualification from being chosen and for being village Pradhan under Section 5-A(e) of the Act, inasmuch as, he was in arrears of "any other dues" payable by him to the gram panchayat.
14. The term "any other dues" following the phrase "any tax, fee, rate" used in section 5-A(e) of the Act means all other dues other than any tax, fee or rate. Section 27(1) of the Act provides for liability of village Pradhan and others to surcharge for the loss, waste or misappropriation of money or property belonging to Gram Panchayat or Nyay Panchayat as the case may be, if such loss, waste or misappropriation is direct consequence of his neglect or misconduct while he was such Pradhan. The demand against the petitioner under Section 27 of the Act was created on account of embezzlement/ misappropriation of the fund of village Panchayat earmarked for development work which shall certainly fall within the phrase "any other dues" used in section 5-A(e) of the Act which was recoverable from the petitioner as arrears of land revenue in terms of Rule 259(2) of the Rules as on the date of his nomination as well as on the date of his election as village Pradhan. The said dues still continues unpaid. This was a quantified amount payable by him to the government.
15. In view of the above discussion, it is held that the amount determined against the petitioner by the District Magistrate vide order dated 27.07.2000 under Section 27 of the Act would fall within the term "any other dues" under Section 5-A(e) of the Act. Thus the petitioner was disqualified from being chosen and from being the village Pradhan but he filed his nomination paper suppressing the material information in his nomination paper and in the affidavit regarding the aforesaid dues.
Questions Nos. ii and iii:
16. In para 2, 3 7 and 8 of the election petition, the respondent no. 4 has made a clear and specific averment that an order dated 27.07.2000, under Section 27(1) of the Act was passed against the petitioner whereby a sum of Rs. 1,83,222.83 representing the government money become liable to be recovered from him as arrears of land revenue, which was not deposited by the petitioner even after dismissal of the writ petition No. 35946 of 2000 on 17.05.2011 and the said amount has not been deposited as yet. The petitioner knowing well the aforesaid dues, has filed the nomination paper along with a false affidavit. In his objections to the aforesaid election petition, the petitioner has not denied the aforesaid statement of facts made in the election petition, rather, he took the stand that a recall application has been filed for recall of the order dated 17.05.2011 passed by the writ court dismissing the writ petition no. 35946 of 2000. Thus, he admitted dues against him as on the date of filing the nomination papers and also when the result of election was declared. He has also not disputed that the fact of the aforesaid dues was suppressed by him by filing a false affidavit accompanying the nomination papers. Thus, as on the date of filing the nomination papers, the petitioner was disqualified in terms of Section 5-A(e) of the Act. Therefore, the respondent no. 4 raised specific argument before the Prescribed Authority stating the aforesaid facts and prayed to allow the election petition. However, the Prescribed Authority arbitrarily, illegally and whimsically dismissed the election petition on the ground that it is not maintainable for the reason that a recall application has been filed by the petitioner herein for recall of the order dated 17.05.2011 dismissing the writ petition. Even before this Court, the petitioner herein has not disputed the fact of dues of Rs. 1,83,222.83 created by order dated 27.07.2000 under Section 27(1) of the Act, the dismissal of the writ petition No. 35946 of 2000 on 17.05.2011 which was filed to challenge the aforesaid order dated 27.07.2000 and the fact of filing the affidavit accompanying the nomination papers by suppression of fact of the aforesaid dues. It is further relevant to note that even in this writ petition, the petitioner has neither disclosed the date when he allegedly filed a recall application in writ petition No. 35946 of 2000 for recall of the order dated 17.05.2011 nor a copy of the recall application has been filed along with this writ petition. Thus, there was no occasion before the Prescribed Authority to dismiss the election petition as not maintainable when the fact of disqualification of the petitioner in terms of Section 5-A(e) of the Act, as aforesaid, was undisputed.
17. Section 12-C(6) of the Act provides three grounds for filing revision to any party aggrieved by the order of of Prescribed Authority upon an application under sub-Section (1) of Section 12-C of the Act. These three grounds are (a) that the Prescribed Authority has exercise 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 exercise of its jurisdiction illegally or with material irregularity. Sub-section (8) of Section 12-C of the Act empowers all revising authority to confirm, vary or rescind, the order of Prescribed Authority or remand the case to the Prescribed Authority for rehearing. Words "confirm, vary or rescind" are very wide and it shall certainly take within its sweep the setting aside of the order of the Prescribed Authority in question and holding the election of the petitioner herein to be null and void on undisputed facts of his disqualification in terms of Section 5-A(e) of the Act.
18. In view of the aforesaid, I do not find any error in the impugned order of the revising authority. There was no occasion to remand the case to the Prescribed Authority when the facts of disqualification of the petitioner in terms of Section 5-A(e) of the Act was undisputed. The question nos. 2 and 3 are answered accordingly.
Question No. iv:
19. While answering the question nos. 1, 2 and 3, this Court has come to the conclusion that the petitioner herein was disqualified to file his nomination to contest the election of the village Pradhan in view of the disqualification incurred by him under Section 5-A(e) of the Act. Under the circumstances, on account of improper acceptance of the nomination of the petitioner (returned candidate) by the Returning Officer, the election has been materially effected as the returned candidate would not have been able to contest the election, due to disqualification incurred by him under Section 5-A(e) of the Act. Thus, the result of the election was materially effected by improper acceptance of nomination of the petitioner herein, which is a specific ground, statutorily provided under Section 12-C(1) of the Act.
20. In the case of Sri Meriembam Prithviraj @ Prithviraj Singh Vs. Sri Pukhram Sharatchandra Singh AIR 2016 SC 5087 (para 22 and 23) the Hon'ble Supreme Court has held as under:
"22. It is clear from the above judgment that there is a difference between the improper acceptance of a nomination of a returned candidate and the improper acceptance of nomination of any other candidate. There is also a difference between cases where there are only two candidates in the fray and a situation where there are more than two candidates contesting the election. If the nomination of a candidate other than the returned candidate is found to have been improperly accepted, it is essential that the election Petitioner has to plead and prove that the votes polled in favour of such candidate would have been polled in his favour. On the other hand, if the improper acceptance of nomination is of the returned candidate, there is no necessity of proof that the election has been materially affected as the returned candidate would not have been able to contest the election if his nomination was not accepted. It is not necessary for the Respondent to prove that result of the election in so far as it concerns the returned candidate has been materially affected by the improper acceptance of his nomination as there were only two candidates contesting the election and if the Appellant's nomination is declared to have been improperly accepted, his election would have to be set aside without any further enquiry and the only candidate left in the fray is entitled to be declared elected. The judgment of this Court in Durai Muthuswami (supra) was referred to in Jagjit Singh v. Dharam Pal Singh, 1995 Supp (1) SCC 422 page 429 in which it was held as follows:
"21. The trial Judge has held that since there is no averment in the petition that the result of the election was materially affected by improper rejection or acceptance of votes, it is devoid of cause of action. We are unable to agree that the absence of such an averment in the facts of this case is fatal. As pointed out by this Court, there may be cases where the obvious conclusion to be drawn from the circumstances is that the result of the election has been materially affected and that Section 100(1)(d) of the Act is not intended to provide a convenient technical plea in a case where there can be no dispute at all about the result of the election being materially affected by the alleged infirmity. (See: Durai Muthuswami v. N. Nachiappan [(1973) 2 SCC 45 : (1974) 1 SCR 40] .) In the present case, the appellant in the election petition has stated that he has lost by a margin of 80 votes only. From the various averments in the election petition it was evident that the number of valid votes of the appellant which are alleged to have been improperly rejected is much more than 80. From the averments contained in the election petition it is thus obvious if the appellant succeeds in establishing his case as set out in the election petition the result of this election, insofar as it concerns the returned candidate, would be materially affected."
It was held by this Court in Vashist Narain Sharma v. Dev Chandra, reported in 1955 (1) SCR 509 as under:
"9. The learned counsel for the respondents concedes that the burden of proving that the improper acceptance of a nomination has materially affected the result of the election lies upon the petitioner but he argues that the question can arise in one of three ways:
(1) where the candidate whose nomination was improperly accepted had secured less votes than the difference between the returned candidate and the candidate securing the next highest number of votes, (2) where the person referred to above secured more votes, and (3) where the person whose nomination has been improperly accepted is the returned candidate himself.
It is agreed that in the first case the result of the election is not materially affected because if all the wasted votes are added to the votes of the candidate securing the highest votes, it will make no difference to the result and the returned candidate will retain the seat. In the other two cases it is contended that the result is materially affected. So far as the third case is concerned it may be readily conceded that such would be the conclusion. But we are not prepared to hold that the mere fact that the wasted votes are greater than the margin of votes between the returned candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected. That is a matter which has to be proved and the onus of proving it lies upon the petitioner. It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidate. The casting of votes at an election depends upon a variety of factors and it is not possible for any one to predicate how many or which proportion of the votes will go to one or the other of the candidates. While it must be recognised that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by Section 100(1)(c) and hold without evidence that the duty has been discharged. Should the petitioner fail to adduce satisfactory evidence to enable the Court to find in his favour on this point, the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand."
(Underlining ours).
This Court in Kisan Shankar Kathore v. Arun Dattatray Sawant (supra) dealt with a situation similar to that of this case. In that case, the election of the returned candidate was successfully challenged on the ground of non-disclosure of material information. The appeal filed by the returned candidate was dismissed by this Court by observing as follows:
"Once it is found that it was a case of improper acceptance, as there was misinformation or suppression of material information, one can state that question of rejection in such a case was only deferred to a later date. When the Court gives such a finding, which would have resulted in rejection, the effect would be same, namely, such a candidate was not entitled to contest and the election is void."
Mere finding that there has been an improper acceptance of the nomination is not sufficient for a declaration that the election is void under Section 100 (1) (d). There has to be further pleading and proof that the result of the election of the returned candidate was materially affected. But, there would be no necessity of any proof in the event of the nomination of a returned candidate being declared as having been improperly accepted, especially in a case where there are only two candidates in the fray. If the returned candidate's nomination is declared to have been improperly accepted it would mean that he could not have contested the election and that the result of the election of the returned candidate was materially affected need not be proved further. We do not find substance in the submission of Mr. Giri that the judgment in Durai Muthuswami (supra) is not applicable to the facts of this case. The submission that Durai Muthuswami is a case of disqualification under Section 9-A of the Act and, so, it is not applicable to the facts of this case is also not correct. As stated supra, the election petition in that case was rejected on the ground of non-compliance of Section 100 (1) (d). The said judgment squarely applies to this case on all fours. We also do not find force in the submission that the Act has to be strictly construed and that the election cannot be declared to be void under Section 100 (1) (d) without pleading and proof that the result of the election was materially affected. There is no requirement to prove that the result of the election of the returned candidate is materially affected once his nomination is declared to have been improperly accepted."
(Emphasis supplied by me)
21. In view of the aforesaid, I have no difficulty to hold that improper acceptance of nomination of the petitioner herein has materially affected the election of the village Pradhan in terms of Section 12-C(1) of the Act. The question no. 4 is answered accordingly.
Question No. v:
22. In view of the conclusion reached by this Court while answering question nos. i, ii, iii and iv above, I do not find any manifest error of law and facts in the impugned order dated 11.11.2016 passed by the learned District Judge, Bhadohi at Gyanpur who has examined the relevant facts and the relevant statutory provisions to set aside the order of the Prescribed Authority dated 30.08.2016 and to allow the election petition and in consequence to declare the election of the petitioner herein as village Pradhan of village Panchayat 'Kasidahan' to be null and void.
23. The judgment of the Division Bench of this Court in the case of Anwar Ali Vs. Prescribed Authority/Sub Divisional Officer, Chunar (2002) 2 UPLBEC 1197 (para 6) and judgment of Hon'ble Single Judge in Writ Petition No. 921 of 1998 (Kaushlesh Vikram Vs. IIIrd Addl. District Judge, Allahabad and others) decided on 30.04.1998 reported in 1998 (89) RD 468 are wholly distinguishable on facts of the present case. The judgment in the case of Rajendra Kumar Meshram Vs. Vanshmani Prasad Verma and another AIR 2016 (SC) 4700 (para 9) relied by the learned counsel for the petitioner has no bearing on the facts of the present case.
24. In view of the above discussions, I do not find any merit in this writ petition. That apart, the writ jurisdiction under Article 226 of the Constitution of India is an extraordinary, equitable and discretionary jurisdiction. There is no equity in favour of the petitioner who has filed an affidavit along with his nomination paper before the Returning Officer, suppressing material facts regarding dues resulting in disqualification under Section 5-A(e) of the Act. Therefore, he is not even entitled to invoke the equitable and discretionary jurisdiction of this Court under Article 226 of the Constitution of India.
25. In result, the writ petition fails and is hereby dismissed with costs.
Order Date :- 17.04.2017/IrfanUddin