The issue which has arisen for consideration of the Court in the present writ petition is as to whether in view of the facts and circumstances of the instant case, the writ petition can be entertained for the reliefs being prayed for by the petitioner, specially keeping in view the fact that the petitioner has already challenged the election of respondent no.6 as 'Gram Pradhan' by way of filing an election petition before the prescribed authority under Section 12-C of U.P. Panchayat Raj Act, 1947.
Heard Sri Akhilesh Kalra, learned counsel for the petitioner and Sri D.C.Mukherji, learned counsel appearing for respondent no.6 and the learned Standing Counsel appearing for opposite parties no. 2, 3 and 4.
The facts deduced from the pleadings available on record which are not in dispute are that in the election held for the office of Gram Pradhan, Gram Panchayat, Naziyapur, Development Block Shivgarh, Tehsil Raniganj, District Pratapgarh, the respondent no.6 was elected as a candidate belonging to Other Backward Class (OBC). The said seat of Pradhan for the Gram Panchayat concerned was reserved for Other Backward Class for the election of the year 2010. The petitioner also filed his nomination paper along with other candidates including respondent no.6. However, the petitioner lost the said election and thereafter raised a controversy that the respondent no.6 Mohd. Saleem submitted his nomination as Other Backward Class candidate on the basis of caste certificate showing him as belonging to 'Qureshi' caste which falls under the OBC category but respondent no.6, in fact, belongs to the 'Pathan' Caste which does not fall in OBC category. As per the list of dates and events submitted by the parties and as per election schedule, nomination papers were to be submitted between 23.09.2010 to 25.09.2010 and date of filing objection to nomination was 26.09.2010. The nominations were scrutinized on 27.09.2010 and the election was held on 11.10.2010, that is to say, polling took place on 11.10.2010. On the basis of the said election the votes were counted on 28.10.2010 and accordingly, the certificate was issued on 28.10.2010 itself in favour of respondent no.6 to the effect that he had got elected to the office of Pradhan of the village concerned. It is also not in dispute that at the time of filing of the nomination paper the respondent no.6 was having a caste certificate issued on 24.02.2010 showing him as belonging to 'Qureshi' caste which falls in the Other Backward Class category. A dispute was raised by the petitioner on the ground that respondent no.6 does not belong to 'Qureshi' caste and thus, the certificate dated 24.02.2010 issued in his favour certifying that he belongs to the Other Backward Class category is not valid. On some proceedings undertaken by the authorities concerned at the instance of the petitioner, it appears that Tehsildar Raniganj, District Pratapgarh vide his order dated 26.10.2010 cancelled the certificate issued in favour of respondent no.6 wherein it was declared that the respondent no.6 does not belong to the 'Qureshi' caste falling under OBC category.
It is also not in dispute that after declaration of the result on 28.10.2010 the Constitution of Gram Panchayat Naziyapur was also notified by the District Magistrate vide notification dated 02.11.2010 under Section 12(3)(d) of U.P. Panchayat Raj Act, 1947. Pursuant to the said notification, the District Panchayat Raj Officer passed the order on 30.11.2010 directing the Block Development Officer to administer oath of office of Pradhan to respondent no.6 and to allow him taking over the charge of the said office. It is the order dated 30.11.2010 passed by the District Panchayat Raj Officer, Pratapgarh which is under challenge in the instant writ petition with a further prayer that respondent no.1 to 5 be directed to restrain the respondent no.6-Mohd. Saleem from functioning as 'Pradhan' of the village concerned.
Learned counsel appearing for the respondent no.6 has opposed the very maintainability of the writ petition on the ground that in view of the provisions contained in Section 12-C of the U.P. Panchayat Raj Act, 1947, which provides for a statutory forum for challenging the election coupled with the bar imposed by Article 243-O of the Constitution of India as regards interference by the Courts in electoral matters relating to any Panchayat, the instant writ petition is not maintainable. He has further contended that the petitioner has already filed an Election Petition under Section 12-C of the U.P. Panchayat Raj Act, 1947 and since the relief claimed in the instant writ petition can be granted only if the election of Respondent No.6 is set aside, as such, in effect the petitioner is seeking to get the election of respondent no.6 set aside through the instant writ petition, which is legally not permissible.
Learned counsel for the respondent no.6 further contended that in view of the pendency of the Election Petition, since the petitioner has already invoked the statutory forum available to him under law, therefore, the writ petition should be dismissed at its threshold.
On the other hand, learned counsel appearing for the petitioner has submitted that he is not challenging the election of respondent no.6, rather he is challenging the order dated 30.11.2010 passed by the District Panchayat Raj Officer, Pratapgarh which was issued in compliance of the order of the District Magistrate dated 19.11.2010 whereby direction has been issued to administer oath of the office to respondent no.6 though the caste certificate on the basis of which he had contested the election has been cancelled, meaning thereby he is no more qualified to hold the office of Gram Pradhan and to continue as such.
Learned counsel appearing for the petitioner also vehemently argued that since after cancellation of the caste certificate, respondent no.6 has rendered himself to be disqualified to hold the office of Pradhan as such the order passed by the District Magistrate and the District Panchayat Raj Officer for administering oath to respondent no.6 is not sustainable.
In support of his contention, learned counsel appearing for the petitioner has heavily relied upon the judgment rendered by Hon'ble Single Judge of this Court in the case of Smt. Meena Devi Vs. State of U.P. and Others, reported in 2010 6 AWC 6463, which was decided on 13.09.2010. He has also relied upon the judgment of Hon'ble Supreme Court in the case of K. Venkatachalam Vs. A.Swamickan and Another, reported in (1999) 4 SCC 526 and Desh Raj Vs. Bodh Raj, reported in AIR 2008 SC 632.
On the other hand, learned counsel appearing for the respondent no.6 relying upon a Division Bench judgment of this Court reported in 2011 (113) RD 480, Smt. Krishna Upadhyay Vs. State of U.P and Others has submitted that the judgment in the case of Smt. Meena Devi (supra) has been overruled subsequently by the Division Bench of this Court in the case of Smt. Krishna Upadhyay Vs. State of U.P and Others (supra). He has further submitted that in view of the judgment in the case of Smt. Krishna Upadhyay Vs. State of U.P and Others (supra) and also keeping in view the fact that the petitioner has already filed an Election Petition under Section 12-C of U.P. Panchayat Raj Act, 1947, the instant writ petition cannot be entertained and should be dismissed.
As observed above, on hearing the learned counsel for the respective parties, the question which needs to be answered in the instant writ petition is as to whether in the facts and circumstances of the case the instant writ petition under Article 226 of the Constitution of India can be entertained keeping in view the pendency of the Election Petition filed by the petitioner before the competent authority under the U.P. Panchayat Raj Act, 1947 ?.
In the case of Smt. Meena Devi Vs. State of U.P. and Others (supra), the writ petition filed by the petitioner challenging the continuance of the returned candidate in the office of Pradhan was entertained notwithstanding the objection based on availability of forum of Election Tribunal under Section 12-C of U.P. Panchayat Raj act and the bar of Article 243-O of the Constitution of India. A careful reading of the judgment of this Court rendered by the Division Bench in the case of Smt. Krishna Upadhyay Vs. State of U.P and Others (supra) unambiguously reveals that in fact the ratio decidendi in the case of Smt. Meena Devi vs. State of U.P. and Others (supra) decided by Hon'ble Single Judge has not been overruled. As a matter of fact, the Division Bench while noticing the judgment of Hon'ble Single Judge in the case of Smt. Meena Devi Vs. State of U.P and Others (supra) has discussed various other judgments and has come to the same conclusion as was the conclusion about the legal principles arrived at by Hon'ble Single Judge in the case of Smt Meena Devi Vs. State of U.P. and Others (supra).
The Division Bench in the case of Smt. Krishna Upadhyay Vs. State of U.P. and Others (supra) and the judgment of Hon'ble Single Judge in the case of Smt. Meena Devi Vs. State of U.P. and Others (supra) enunciate the same legal principle as to under what circumstances a writ petition can be entertained under Article 226 of the Constitution of India without insisting upon the party concerned to invoke the provisions of Section 12-C of the U.P. Panchayat Raj Act, 1947 for filing the Election Petition. It has been observed in both the judgments that if the disqualification is earned by the returned candidate after filing of nomination papers and after declaration of result, then his continuance on the post may become unlawful for which an appropriate writ (may be a writ of Quo Warranto) can be prayed for under Article 226 of the Constitution of India; however, if the disqualification existed at the time of filing of nomination and continued to exist up to declaration of the result then such a matter can be agitated by the person aggrieved only by way of filing an Election Petition under Section 12-C of the U.P. Panchayat Raj Act.
The ratio, thus, deduced from a reading of the aforesaid judgments of this Court in the case of Smt. Krishna Upadhyay Vs. State of U.P and Others (supra) and in the the case of Smt. Meena Devi Vs. State of U.P. and Others (supra) is that disqualification by an elected person to the office of Pradhan can be earned by him at two stages; firstly the returned candidate may be disqualified from the very beginning of the election process i.e from the stage of filing of nomination and secondly, the disqualification is earned by the elected candidate after the stage of nomination and declaration of result are over. The disqualification earned by an elected candidate subsequent to filing of nomination paper and declaration of result will make his continuance to be unlawful and for removal of such an elected Pradhan, election need not be set aside. His removal can be sought by seeking an appropriate writ by way of filing a writ petition under Article 226 of the Constitution of India.
However, in case the elected Pradhan was disqualified at the time of filing of nomination or declaration of result, then such a case would be a case of improper acceptance of nomination and on the said ground, as given in Section 12-C (b) of U.P. Panchayat Raj Act, 1947, Election Petition can be filed for the reason that one of the grounds on which the election petition can be filed under Section 12-C of the U.P. Panchayat Raj Act is that the result of the election has been materially effected by improper acceptance or rejection of any nomination.
In other words, there can be two different situations warranting interference by the High Court under Article 226 of the Constitution of India or by the Election Tribunal constituted under the relevant statute. First situation will arise in a case where challenge to election may be needed and in the second situation challenge to continuance of the elected candidate in the office of Pradhan may be called for. In the first situation, appropriate and proper remedy is filing of Election Petition before the Election Tribunal, whereas in the second situation, it may be permissible for the person aggrieved to invoke writ jurisdiction of this Court under Article 226 of the Constitution of India.
The facts of the present case lead to the conclusion that it is a case which falls in the first situation described above.
Admittedly the respondent no. 6 was declared to have been elected on 28.10.2010 whereas his caste certificate was cancelled prior to it i.e. on 26.10.2010. The sole basis of the petitioner's case is that by means of the order dated 26.10.2010 the caste certificate issued in favour of respondent no.6 certifying him as belonging to Other Backward Caste was cancelled and hence his election is illegal. It is noteworthy to observe here that it is not a case where the respondent no.6 has earned the disqualification after declaration of result or after he took charge of the office of Pradhan. The disqualification, in fact, was earned by the respondent no.6 prior to declaration of result and as such the said disqualification can be agitated by way of filing an Election Petition before the Election Tribunal under Section 12-C of the U.P. Panchayat Raj Act. Since it is not a case where the disqualification has been earned by the respondent no.6 after declaration of result, the petitioner can get any relief only when the election of respondent no.6 is set aside on the ground of improper acceptance of nomination of respondent no.6 or on any other ground available to him under the provisions of U.P. Panchayat Raj Act, 1947 and the rules framed thereunder.
The facts of the case decided by the Division Bench in the case of Smt. Krishana Upadhyay Vs. State of U.P. and Others (supra) are that the allegation against the returned candidate was that she did not fulfill the requisite qualification for the post of Pradhan as she was less than 21 years of age on the date of filing of nomination as well as on the date of election. Thus, in the said case the disqualification existed on the date of filing of nomination which continued till the declaration of result. In the instant case also, the disqualification of respondent no.6 can be said to have been earned by him on cancellation of his caste certificate on 26.10.2010 i.e. before declaration of result which was done on 28.10.2010 and hence, his election may be sought to be set aside by way of filing the election petition only.
As regards the other judgment cited by the learned counsel for the petitioner i.e. the case of K. Venkatachalam Vs. A.Swamickan and Another (supra) it may be pointed out that in the said case the writ petition was entertained under Article 226 of the Constitution of India for the reason that it was a case of impersonation by the returned candidate and further that no election petition under the relevant provision of Representation of People Act was filed.
So far as the case of Desh Raj Vs. Bodh Raj (supra) relied upon by the learned counsel for the petitioner is concerned, it may be noticed that it was a statutory appeal under Section 116-A of Representation of the People Act, 1951 filed against the judgment of Himachal Pradesh High Court dismissing an Election Petition that was decided by the Hon'ble Supreme Court and the issue relating to forum of challenge by way of invoking the jurisdiction of High Court under Article 226 of the Constitution of India vis-a-vis the forum of an Election Tribunal under the relevant statute was not discussed. Thus, the reliance being placed by the learned counsel for the petitioner on the aforesaid judgments is of no avail to him.
In view of above discussion and taking into account the bar envisaged by Article 243-O of the Constitution of India and also keeping in view the pendency of Election Petition filed by the petitioner under Section 12-C of U.P. Panchayat Raj Act, the Court is of the considered opinion that the instant writ petition can not be entertained, hence, the same is hereby dismissed.
It is, however, observed that the Election Tribunal shall expedite the hearing of the Election Petition filed by the petitioner under Section 12-C of U.P. Panchayat Raj Act and the same shall be decided within a period of six months from the date a certified copy of this judgment is produced before it.
There will be no order as to cost.
Order Date :- 24.02.2012 Akhilesh/-