Court No. - 40
Case :- MATTERS UNDER ARTICLE 227 No. - 8497 of 2019 Petitioner :- Ram Ashray Yadav Respondent :- State Of U.P. And 04 Others Counsel for Petitioner :- Ramsagar Yadav Counsel for Respondent :- C.S.C.,Vikas Srivastava
Hon'ble Siddhartha Varma,J.
Election for electing a Pradhan was notified on 5.12.2015. Results were declared on 13.12.2015 in which one Laudhar Verma was declared elected.
The petitioner filed an Election Petition which was dismissed on 30.8.2016. Thereafter, the petitioner filed a Revision being Revision No. 48 of 2016 which was ultimately allowed on 11.11.2016. The elected Pradhan i.e. Laudhar Verma filed a Writ Petition No. 57243 of 2016 which was dismissed on 17.4.2017.
The petitioner upon the Revision being allowed moved an application under Section 151/152 of the C.P.C. to get the judgement and decree of the Revisional Court corrected and made a prayer that he be declared the elected Pradhan. This application was rejected on 25.4.2017. Simultaneously, the petitioner Ram Ashray Yadav also filed an application before the District Magistrate for being declared the elected Pradhan but the District Magistrate dismissed the application on 21.1.2017 and ordered that a fresh election be notified and held within six months. The fresh election when was notified, the petitioner filed a Writ Petition No. 23738 of 2017 by which he challenged not just the order dated 21.1.2017 but also the order of the Prescribed Authority dated 13.12.2015 and the Revisional Court's order dated 11.11.2016. This writ petition came to be dismissed on 11.7.2017 as having become infructuous as the election was already notified in January, 2017. However, in the meantime, the election result of the election notified on 21.1.2017 was declared on 3.7.2017 declaring the respondent no. 5 Anil Kumar Mishra as an elected Pradhan. The petitioner, thereafter, filed an Election Petition and prayed essentially for the quashing of the notification by which the election was notified. The District Magistrate on 6.8.2018 dismissed the Election Petition. This order was put to challenge before the Revisional Court, which when on 2.9.2019 dismissed the Revision, the instant writ petition was filed.
Learned counsel for the respondent no. 5 raised a preliminary objection stating that when the notification had been challenged in the Writ Petition No. 27923 of 2017 and when the petition was dismissed on 27.6.2017 with an observation that the petitioner could seek the relief claimed in the pending Writ Petition No. 23738 of 2017, then the petitioner could not have challenged the notification once again by means of an Election Petition.
Learned counsel for the respondents further submitted that the Election Petition itself was not maintainable at all in view of the provisions of Section 12 (C) of the U.P. Panchayat Raj Act, 1947. Since the respondent no. 5 relied upon the provisions of 12 (C) of the U.P. Panchayat Raj Act, 1947, they are being reproduced here as under:-
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, or
(b) that the result of the election has been materially affected –
i- by the improper acceptance or rejection of any nomination or;
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; or
(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; or (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; or (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 sub-section (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.
While deciding the preliminary objection itself, I was of the view that the Election Petition was not maintainable and it was, therefore, rightly dismissed.
It may be noted that the petitioner had also participated in the election after the notification was issued for the fresh elections and for this reason also he could not have challenged the notification.
Under such circumstances, the writ petition is dismissed.
Order Date :- 26.11.2019 PK