1. As per the office report, one of the defects pointed out at serial No.1 is that the power has not been signed by one of the counsels for the petitioner. The power has not been signed by Shri Nitya Nand Mani Tripathi, Advocate. The power has been signed only by Shri Vijay Shankar Trivedi, Advocate.
2. Shri Nitya Nand Mani Tripathi, Advocate appears through video conferencing and submits that due to inadvertence, the Vakalatnama could not be signed by him. He submits that he would argue the matter as holding brief of Shri Vijay Shankar Trivedi. He is permitted to argue the matter.
3. By means of this writ petition, the petitioner has prayed for the following main relief:-
"Issue a writ order or direction in the nature of Mandamus commanding the opposite parties not to give the Oath/ charge for the post of Gram Pradhan of Village Panchayat Naseerpur Chhitauna, Block jahangirganj, Tehsil Aalapur, District- Ambedkar Nagar to the opposite party No.5 and not to allow her to function on the aforesaid post of Gram Pradhan."
4. Learned counsel for the petitioner submits that in the elections held for the post of Gram Pradhan in the year 2015 Smt. Seema Pandey was declared elected on 13.12.2015. Her election was challenged by the petitioner in an election petition Case No.2002/2016 under Section 12-C of the U.P. Panchayat Raj Act, 1947 which was allowed by the Sub-Divisional Officer, Ambedkar Nagar vide order dated 12.11.2018 whereby the election of the post of Pradhan, dated 13.12.2015, was declared null and void. Subsequently, election for the post of Pradhan was held again in the year 2019, in which the petitioner was declared as the elected Pradhan. His submission is that as the petitioner took charge on 7.8.2019, her period of five years, would come to an end on 6.8.2024 and consequently no election, for the post of Pradhan of the concerned Village Panchayat could be legally held in the year 2021, i.e., the present elections.
5. Learned counsel for the petitioner submits that the petitioner has filed Writ Petition No.10103 of 2021 (M/S) to quash the election scheduled for 29.04.2021 and to allow the petitioner to continue on the post for Gram Pradhan upto 06.08.2024, which is pending before this Court and as in the meantime election were held in which Opposite Party No.5 was declared elected, the present petition has been filed for the relief that the opposite party No.5 be not administered oath and be not allowed to function as Pradhan.
6. Sri Raj Bux Singh, learned Additional Chief Standing Counsel has raised a preliminary objection that in view of the pendency of Writ Petition No.10103 of 2021 (M/S), in which the same question has been agitated by the petitioner, the present writ petition is not maintainable as in effect and substance this would be the second writ petition.
7. In rebuttal, learned counsel for the petitioner submits that the declaration of result in favour of opposite party No.5 has given fresh cause of action to maintain this writ petition.
8. Ms. Shreya Chaudhary, Advocate holding brief of Shri Rakesh Kumar Chaudhary, learned counsel for the opposite party Nos.1 & 2, has submitted that after the election of the year 2015 was set side in the election petition, the by-election was held in the year 2019 in which the petitioner was elected, not for a period of five years but for the remaining period of the Gram Panchayat.
9. I have considered the submissions advanced by the learned counsels for the parties and perused the material on record.
10. The preliminary objection to the maintainability of the present writ petition as raised by the learned State Counsel is devoid of any merit in as much as Writ Petition No.10103 of 2021 (M/S) was filed against the election process and voting which was scheduled for 29.4.2021 and by that time as election was not held the relief as prayed in the present writ petition could not be asked for in the earlier writ petition. Declaration of result of election is a fresh cause of action. The ground of challenge as in the present writ petition might also be the ground of challenge in the earlier writ petition but on the basis thereof it cannot be held that the present is the second writ petition on the same subject matter. The earlier writ petition is pending in which the legality or sustainability of the ground of challenge has yet not been tested.
11. I therefore proceed to decide the present writ petition considering the ground of challenge as raised herein, overruling the preliminary objection.
12. The election of Pradhan for the concerned village Panchayat was earlier held in the year 2015, but was declared void by order dated 12.11.2018 passed by the Prescribed Authority in the election petition. Thereafter, the election was held in the year 2019 in which the petitioner was elected as Pradhan and administered oath on 7.8.2019.
13. The short question is as to what is the term of the petitioner as Pradhan when elected in the elections held in 2019, consequent upon setting aside of the elections held in 2015.
14. The election of Pradhan held in 2019 in which the petitioner was declared elected, was a by-election, to fill the vacancy caused due to declaration of the election of the earlier Pradhan as void, in the election petition. The vacancy for which election was held in 2019 was a casual vacancy. The certificate issued by the State Election Commission annexed as Annexure No.2 to the petition, clearly demonstrates that the petitioner was elected in by-elections.
15. Section 12-H of the U.P. Panchayat Raj Act, 1947 ( in short referred to as " Act, 1947), provides as under:-
"If a vacancy in the office of the Pradhan, or a member of a Gram Panchayat arises by reason of his death, removal, resignation, voidance of his election or refusal to take oath of office, it shall be filled before the expiration of a period of six months from the date of such vacancy, for the remainder of his term in the manner, as far as may be, provided in Sections 11-B, 11-C, or 12, as the case may be:
Provided that if on the date of occurrence of such vacancy the residue of the term of the Gram Panchayat is less than six months, the vacancy shall not be filled."
16. Section 12-H of the Act, 1947, clearly provides that if a vacancy in the office of the Pradhan arises by reason of his death, removal, resignation, voidance of his election or refusal to take oath of office, it shall be filed before the expiration of six months from the date of such vacancy, for the remainder of the term of the Gram Panchayat, provided that, if on the date of occurrence of such vacancy the residue of the term of Gram Panchayat is less that six months, the vacancy shall not be filled. In view of this provision, if vacancy is caused due to voidance of election of a Pradhan the same shall be filled for the residue of the term of the Gram Panchayat, if it is not less than six months on the date of occurrence of vacancy.
17. In Savitri Devi Vs. State of U.P. and others 2017 (124) ALR 863: 2017 (136) RD 328 (Alld), this Court has held as under:
" 4. It is noteworthy that the existing vacancy is a casual vacancy which falls under section 12-H of U.P. Panchayat Raj Act, 1947 and has to be filled by regular election as provided under section 11-B of the Act. Section 12-H puts a mandate that such vacancies shall be filled before expiration of the period of six months from the date of occurrence of vacancy. Further the elected candidate would be entitled to continue for the remainder of the term in office of the Pradhan. The proviso to section 12-H, however, says that in case, the residue of the term is less than six months such vacancy shall not be filled by election. Section 12-J, however, provides for making temporary arrangement by nomination of a member of Gram Panchayat to discharge the duties and exercise the powers of Pradhan until vacancy is filled up."
18. The question framed in Paragraph 13, is answered, that, as the petitioner was elected against casual vacancy caused due to voidance of the election of earlier Pradhan, the petitioner's term would not be five years, but would be for the residue of the term of Gram Panchayat.
19. In view of the aforesaid, the submission made by learned counsel for the petitioner that the petitioner's term would come to an end in the year 2024 has no substance and is rejected. The term of the petitioner as Pradhan came to an end with the expiry of the term of the Gram Panchayat.
20. The writ petition is devoid of merit and is hereby dismissed.
Order Date :- 24.5.2021 Ashutosh Pandey