1. Sri K.N. Tripathi, learned Senior Advocate assisted by Sri Nipun Singh, Advocate for the petitioner, learned Standing Counsel for respondent no.1 and Sri V.C. Dixit for caveator and respondent no.2.
2. The petitioner is aggrieved by order dated 29.2.2012 (Annexure 10 to the writ petition) passed by the Additional District Judge, Court no.2, Muzaffar Nagar, rejecting her application no. 148/C (Annexure-8 to the petition), wherein she requested for rejection of election petition challenging her election as 'Adhyaksh', Nagar Panchayat, Bhokerhedi, District Muzaffar Nagar on the ground that she has already completed her term and the Government has now appointed Administrator and, no cause of action survives further to maintain the election petition.
3. The petitioner contested the election of Adhyaksh, Nagar Panchayat Bhokerhedi, District Muzaffar Nagar held in October 2006 pursuant to State Election Commission's Notification dated 24.9.2006. The petitioner succeeded and was elected as Adhyaksh, Nagar Panchayat, Bhokerhedi.
4. Respondent no.2 Smt. Beena, wife of Sri Gyanendra challenged election of petitioner vide Election Petition no.519 of 2006 on the ground that the petitioner was disqualified for contesting election being below age of 30 years at the time of nomination. This objection was raised by respondent no.2 at the time of nomination also but did not find favour with the Returning Officer. Hence, she challenged election of petitioner under Section 20 of U.P. Municipalities Act 1960 (hereinafter referred to as "the Act 1960"). Respondent no.2 sought three prayers in the above petition:
^^v%& ;g fd iSVh'kuj dk iSVh'ku Lohdkj fd;k tkos ,oa iSVh'kuj dks uxj iapk;r HkksdjgsMh dk v/;{;k fuokZfpr ?kksf"kr fd;k tkosA c%& ;g fd iSVh'kuj dks fdlh dkj.ko'k fuokZfpr v/;{k ?kksf"kr ugha fd;k tkrk rks uxj iapk;r HkksdjgsMh ds v/;{k in dh vkdfLed fjfDr dks tks vkj uxj iapk;r HkksdjgsMh ds v/;{k in gsrq iqu% pquko djk;s tkos rFkk foi{kh ua0 1 ¼,d½ }kjk >wBk vk;q dk izek.k i= 'kiFk i= nkf[ky fd;s tkus ds lEcU/k esa vijkf/kd U;k;ky; esa foi{kh;k ua- ¼,d½ ds fo:) dk;Zokgh pyk;h tkosA l%& ;g fd nhxj nkjlh tks cutj gkykr eqdnek cgd oknh iSVh'kuj lkfnj gks ldrh gS] lkfnj Qjek;h tkosA**
(a) That the petition of the petitioner be allowed and the petitioner be declared Chairperson of Nagar Panchayat, Bhokarhedi.
(b) That if, for any reason, the petitioner is not declared elected to the office of Chairperson, then re-election may be held for the casual vacancy of Chairperson, Nagar Panchayat, Bhokarhedi and proceedings be initiated against respondent no. 1 in a criminal court for filing a false affidavit in respect of her age.
(c) That any other relief that can be granted in favour of the petitioner in view of the facts and circumstances of the case, be granted. (English Translation by Court)
5. The petitioner contested the election petition filing a written statement wherein she admitted to have passed High School in 1985 and Intermediate in 1987 though she disputed the allegation of respondent no.2 that her age at the time of nomination was 27 years and odd, i.e. even less than 28 years. She also filed application for rejection of election petition on the ground of non-disclosure of cause action etc.
6. Petitioner's applications for rejection of election petition in limine, i.e., under Order VII Rule 11 and Order VI Rule 16 C.P.C. were rejected vide orders dated 29.1.2008, 23.10.2007 and 21.3.2007 whereafter she came to this Court in Writ Petition No.108 of 2008 which was decided on 29.6.2009. This Court found that objections raised by petitioner i.e., Smt. Anita, were unnecessary, scandalous, frivolous and vexatious. The Court also observed that petition should be decided expeditiously and no unnecessary adjournment shall be granted by Election Tribunal and in case any adjournment is necessary, it shall be on heavy cost which shall not be less than Rs.1000/- per adjournment and shall not be of more than one week or maximum two weeks. Intention of this Court is very clear that it desired to ascertain disposal of election petition on merits expeditiously and in any case within the tenure of returned candidate so that all the issues agitated in election petition are decided without rendering any one of them infructuous.
7. This desire, however, ultimately remained on paper and election petition in fact, was/could not be decided by Tribunal expeditiously. In the meantime, the petitioner completed five years of term rendering at least some part of the election petition infructuous. The Court below in the impugned order has observed that election petition could not be decided despite judgment dated 29.6.2009 due to non-cooperation of petitioner. At this stage, I do not intend to investigate further on this aspect since the issue raised before me is slightly different and I would confine myself only thereto else other observation(s), if any, may influence further proceedings before the court below.
8. Sri K.N. Tripathi, learned Senior counsel, for the petitioner, contended that relief sought by respondent no.2 in the election petition that she should be declared elected Adhyaksh, Nagar Panchayat, Bhokerhedi after accepting election petition and in the alternative a direction be issued for fresh election of the said office, cannot be granted. He contended that this relief cannot be granted after petitioner has ceased to be the Adhyaksh, Nagar Panchayat, Bhokerhedi and, therefore, election petition has become infructuous. It was thus bound to be dismissed as such. The court below however has committed patent error of law by not accepting the said request of the petitioner.
9. It appears that the petitioner earlier also approached this Court with a similar relief by filing writ petition no. 4912 of 2012 which was disposed of on 02.02.2012 with permission to petitioner to move appropriate application before the Election Tribunal and the Tribunal was required to pass appropriate order in accordance with law thereon.
10. Having heard learned counsel for the petitioner and perusing the record, I however do not find myself in agreement with the above submission of Sri Tripathi.
11. The reliefs sought by respondent no.2 are not only confined with regard to election on the post of Panchayat Adhyaksh but she has also sought the relief for taking action against petitioner for contesting election by false declaration and filing false affidavit before Returning Officer regarding her age. Respondent no.2 has specifically pleaded in election petition that day of birth of petitioner Smt. Anita, as borne out from High School certificate is 18.06.1979 meaning thereby in 2006 she was below even 28 years of age. This fact has been stated in paragraph 8 of the election petition. It has been replied in the written statement by the petitioner admitting passing of High School examination with roll number 271442 as stated in the para 8 of the election petition but about the date of birth nothing has been said. In fact the petitioner has not placed even her High School certificate before this Court to show her exact date of birth and on the contrary has tried to rely on the age mentioned in the electoral roll. The date of birth mentioned in High School certificate declared by the petitioner or her parents would have to be taken correct unless proved wrong by cogent material. That being so, it cannot be disputed that the petitioner would not have been eligible and qualified to contest election of Adhyaksh, Nagar Panchayat, Bhokerhedi in 2006. Her affidavit with regard to age in that case would be false. Since, this issue is yet to be decided by the Election Tribunal where matter is pending and this Court would not, therefore, record any ultimate finding thereon.
12. This Court however cannot desist from observing that a candidate if has contested an election and succeeded to hold a public office by filing false affidavit and contravening the statutory provisions (in this case Act 1960), he/she must be liable to face such action, civil or criminal, as the case may be, and there should be no doubt or reservation about it. No doubt it is true that enjoyment of the office already experienced may not be withdrawn but a candidate who has benefited himself/herself by such false declaration etc. can be made to refund monetary benefits and/or the value of perks, allowances, salary, etc, it had obtained/enjoyed while serving in public office in an illegal manner. There are several consequences which may follow and it is not necessary to mention them exhaustively herein.
13. The experience has shown that a returned candidate whenever faces an election petition, tries to delay its final disposal and take all steps so as to allow it to be decided on merits, at least till the term he/she is elected is exhausted. All sorts of technical and other objections are raised and no stone is left untouched which may help such a candidate in delaying the proceedings. It is very rarely that an election petition is decided on merits and one such occasion, this Court finds in history, when political scenario of the entire country got changed when this Court allowed an election petition resulting in unseating of a returned candidate from the office of Member of Parliament who was also holding the office of Prime Minister of the country at that time. After that judgment tendency has increased to delay and prolong such proceedings, more in practice, and an all out efforts is made to ensure that election petition on merits is not decided till the term for which the candidate has been elected is over.
14. The candidates who challenge the election also loses interest after the elected candidate no more remains in office. This is how the system of election petition permitting judicial scrutiny has been made mere a mockery than a substantive procedural remedy against such scrupulous, dishonest and unqualified persons checking them from coming to the office by manipulations etc. It also cannot be disputed that now an elected office in various ways enjoy considerably high level of several perks and benefits besides monetary gains.
15. Such office if acquired fraudulently, illegally and dishonestly, should be treated as if the incumbent never came to office validly in law. Therefore, he is bound to restore the monetary benefit and the costs of perks etc. to public exchequer. Time has come to take care of all such direct, ancillary and incidental aspects in election matters relating to election petition so that this remedy proved to be an effective measure and may also prevent such unwarranted persons from coming to public office by fraudulent and illegal means.
16. Whenever fraud etc. is proved, appropriate direction of criminal and civil action must also be taken. Purity of democratic system can be maintained by adhering to a process which would ensure an honest and valid election. Filing of an affidavit disclosing various facts is a statutory requirement which presupposes declaration of correct facts therein. If a candidate has made a false declaration there should be no hesitation in inferring that such candidate has contested election illegally, fraudulently and by misrepresentation. This would amount to contesting the election in contravention of the provisions of the Act and Rules and Regulations framed thereunder. The consequences, therefore, must have to follow.
17. In my view, the reliefs sought in the election petition, considering in the above circumstances, cannot be said to have rendered infructuous in their entirety though partially some of the reliefs claimed by respondent no.2 cannot obviously be granted having rendered infructuous due to efflux of time. I, therefore, find no reason to interfere with the impugned order passed by the Election Tribunal taking a similar view.
18. Looking into all these facts and circumstances in the present case, I have no hesitation to conclude that here is not a fit case which warrants interference in equitable extraordinary jurisdiction under Article 226 of Constitution of India which has been invoked by the petitioner by means of the present writ petition. Even otherwise, as already discussed, I do not find any error apparent on the face of record in the impugned order warranting interference.
19. The writ petition is accordingly, dismissed with costs quantified at Rs. Five Thousand only.
Order Date :- July 09; 2012 Akn