Court No. - 32
Case :- WRIT - C No. - 17714 of 2021 Petitioner :- Subhash And Another Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Faizur Rahman Counsel for Respondent :- C.S.C.
Hon'ble Rohit Ranjan Agarwal,J.
1. Heard Sri Faizur Rahman, learned counsel for the petitioners and learned Standing Counsel for the respondents No.1 to 5.
2. This writ petition has been filed with the following prayer;
"(a). Issue a writ order or direction in the nature of mandamus commanding concern respondents to decide the complaint on Jansunwai Protal Reference No.40016221005285 dated 23.05.2021 made by the petitioner no.1.
(b). Issue a writ order or direction in the nature of mandamus commanding concern respondents to cancel selection of the respondent no.6 on the post of Gram Pradhan in Gram Panchayat- Awavar Block-Sahar District Auraiya in year 2021.
(c). Issue a writ order or direction in the nature of mandamus commanding the concerned respondents to perform the re-election on the post of Gram Pradhan in Gram Panchayat Awavar Block Sahar District Auraiya."
3. This writ petition has been filed challenging the election of the respondent no.6 who has been elected as Gram Pradhan in the Election held in the month of April, 2021 .
4. Learned Standing Counsel submitted that Section 12 (C) of the U.P. Panchayat Raj Act, 1947 mandates that election of the Pradhan can be questioned only by filing an application before the concerned authority and thus petition under Article 226 of the Constitution of India is not maintainable.
5. I have heard learned counsel for the parties and perused the material on record.
6. Before proceedinshallg further a conspicuous glance of Section 12 (C) is necessary to appreciate the controversy in hand. The relevant provisions are extracted here as under;
"12-C. Application for questioning the elections - (1) The election of a person as Pradhan 2[* * *] 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 subsection (4) the rules may provide for summary hearing and disposal of an application under sub-section (1).
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.]"
7. From perusal of Section 12 (C) it is clear that once elections are over, any candidate, who is aggrieved by the results, may make an application before the Prescribed Authority challenging the said elections and no writ petition under Article 226 of the Constitution of India is maintainable.
8. The panchayats had been included in Part 9 of the Constitution of India by the 7th amendment w.e.f. 01.11.1956 as Article 243. Further Article 243-O bars interference of Courts in electoral matters. Relevant provisions are extracted here as under;
"243-O. Bar to interference by courts in electoral matters.-
Notwithstanding anything in this Constitution-
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 243K, shall not be called in question in any court;
(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any Law made by the Legislature of a State."
9. Thus, in view of the provisions of Article 243-O of the Constitution of India as well as Section 12 (C) of the U.P. Panchayat Raj Act, 1947, no writ petition under Article 226 of the Constitution of India, can be entertained by this Court and the only remedy left to the petitioner is by way of filing an application before the Prescribed Authority/election petition challenging the elections.
10. In view of the above, writ petition is devoid of merit and is hereby dismissed.
Order Date :- 30.7.2021 SK Goswami