# Devi Dayal v. State of U.P. & Ors

- **Citation:** (2021) 10 ILRA 141
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-01
- **Case number:** P.I.L. Civil No. 22411 of 2021
- **Bench:** Ritu Raj Awasthi, Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/devi-dayal-v-state-of-u-p-ors-46221
- **Pages:** 6

## Headnote

A. Civil Law -Constitution of India,1950Article 226-challenge to- validity of holding
of office of pradhan by respondent no. 5the same attracted a disqualification being a
clerk in the Bank-application u/s 6-A of the
Act, 1947 for setting aside the election
would not lie for the purpose sought by the
petitioner-Moreso, the said election can be
questioned, keeping in view the Article
243(O)(b) of the Constitution of India,
would be by means of an election petition
u/s 12(C) of the Act, 1947-After the election
process has come to an end, the State
Election Commissioner, District Magistrate
and the Election Officer cease to have any
jurisdiction and the only authority which can
deal
with
and
decide
any
complaint
regarding the election is the Election
Tribunal-Thus, the petitioner may avail
other alternate remedies.(Para 1 to 21)

The petition is disposed of. (E-6)

List of Cases cited:

## Text

10 All. Devi Dayal Vs. State of U.P. & Ors.
141
the sole basis of dying declaration. Learned
trial court was completely justified in
placing reliance on dying declaration Ex.
KA-12 and convicting and sentencing the
accused-appellant on the basis of it.

42. No other point or argument was
raised from the side of the appellant.

43. Keeping in view of the above
discussions, this Court is of definite
opinion that learned trial court has rightly
convicted and sentenced the accusedappellant and this appeal has no force.

44. The appeal lacks merit and is
accordingly, dismissed.
----------
(2021)10ILR A141
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.10.2021

BEFORE

THE HON'BLE RITU RAJ AWASTHI, J
THE HON'BLE ABDUL MOIN, J.

P.I.L. Civil No. 22411 of 2021

Devi Dayal ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Alok Singh

Counsel for the Respondents:
C.S.C.

A. Civil Law -Constitution of India,1950Article 226-challenge to- validity of holding
of office of pradhan by respondent no. 5the same attracted a disqualification being a
clerk in the Bank-application u/s 6-A of the
Act, 1947 for setting aside the election
would not lie for the purpose sought by the
petitioner-Moreso, the said election can be
questioned, keeping in view the Article
243(O)(b) of the Constitution of India,
would be by means of an election petition
u/s 12(C) of the Act, 1947-After the election
process has come to an end, the State
Election Commissioner, District Magistrate
and the Election Officer cease to have any
jurisdiction and the only authority which can
deal
with
and
decide
any
complaint
regarding the election is the Election
Tribunal-Thus, the petitioner may avail
other alternate remedies.(Para 1 to 21)

The petition is disposed of. (E-6)

List of Cases cited:

1. Amrendra Singh Vs St. of U.P. & ors. (2006)
1 AWC 917

2. Smt. Smt. Ram Kanti Vs D.M. & ors. (1995)
AWC 1465
3. N.P. Ponnuswami Vs Returning Officer,
Namakkal Constituency (1952) AIR SC 64
4. Krishnamoorthy Vs Sivakumar & ors. (2015)
AIR Vol-3 SCC 467

(Delivered by Hon'ble Ritu Raj
Awasthi, J.
&
Hon'ble Abdul Moin, J.)

1. Notices on behalf of opposite
parties no.1 to 3 have been accepted by the
office of learned Chief Standing Counsel.

2. Heard learned counsel for the
petitioner as well as Mr. Manish Mishra,
learned Standing Counsel appearing on
behalf of State Authorities.

3. The instant writ petition has been
filed in the nature of public interest
litigation seeking following reliefs:

"1. Issue a writ, order or
direction in the nature of mandamus
directing the opposite parties no. 1 to 3 to
142 INDIAN LAW REPORTS ALLAHABAD SERIES
take effective measures for enquiring into
the complaint dated 13.08.2021 preferred
by the petitioner regarding the functioning
of opposite party no. 5 on the post of Gram
Pradhan, Gram Panchayat-Mohammadpur
Nagara Garhi, Pargana Kasta, TehsilMitauli, District-Kheri.

2. Issue a writ, order or direction
in the nature of mandamus directing the
opposite parties no. 2 and 3 to disqualify
the opposite party no. 5 from the post of
Gram Pradhan, Gram Mohammadpur
Nagara Garhi, Panchayat Pargana-Kasta,
Tehsil-Mitauli, District-Kheri exercising
their power provided in chapter II-A
Section-5-A sub rule-(c) U.P. Panchayat
Raj Act, 1947.

3. Any other order or direction,
which this Hon'ble Court may deem fit and
proper, may also be passed in the interest
of justice.

4. Allow the writ petition with
cost."

4. Learned counsel for the petitioner
contends that the respondent no.5 has been
elected as Gram Pradhan, Gram Panchayat
Mohammadpur Nagara Garhi, Pargana
Kasta, Tehsil Mitauli, District Kheri in
April, 2021. It is alleged that she is holding
the office of profit in the capacity of being
a Clerk in the respondent no.4/Bank and
thus
the
same
has
attracted
a
disqualification for her being elected as
Pradhan. He further submits that in this
regard the petitioner has already preferred
an application under the provisions of
Section of 6-A of Uttar Pradesh Panchayat
Raj Act, 1947 (hereinafter referred to as
'the Act, 1947') and prays that the said
application be directed to be decided in
accordance with law within specified a
time.

5. Mr. Manish Mishra, learned
Standing Counsel appearing on behalf of
the State Authorities, on the other hand,
submits that once the respondent no.5 has
been
elected
as
Gram
Pradhan
the
application under Section 6-A of the Act
1947 would not be maintainable, rather
only an election petition can be filed under
Section 12-C of the Act, 1947 to challenge
the election of the respondent no. 5 for the
alleged disqualification and thus the present
writ petition would not be maintainable.

6. Having heard the learned counsel
appearing for the contesting parties and
having perused the records what is apparent
is that by means of the instant petition,
though the petitioner has sought for a
mandamus commanding the respondents
no. 1 to 3 to enquire into the complaint
dated
13.08.2021
submitted
by
the
petitioner regarding the functioning of the
respondent no. 5 who admittedly has been
elected as Gram Pradhan of the concerned
Gram Panchayat yet in fact the petitioner
wants the respondent no. 5 to be
disqualified from the post of Gram Pradhan
as would be apparent from the second
prayer made in the petition. The ground
taken is that on account of respondent no. 5
holding an office of profit in the capacity of
being a clerk under the respondent no. 4-
bank, she could not have been validly
elected as Gram Pradhan. Though the writ
petition is couched in very innocuous terms
and
seeks
the
decision
on
the
application/complaint
filed
by
the
petitioner by invoking the disqualification
as prescribed under Section 5 A of the Act,
1947 yet, as already indicated above, the
resultant effect of the same is setting aside
of the election of respondent no. 5, an
elected Gram Pradhan.
10 All. Devi Dayal Vs. State of U.P. & Ors.
143

7. For the purpose of consideration of
the said prayer, we would have to consider
the provisions of Section 12 C of the Act,
1947 which for the sake of convenience are
reproduced below:-

"12-C.
Application
for
questioning the elections - (1) The election
of a person as Pradhan [The words "of a
Gaon Sabha" omitted by U.P. Act No.9 of
1994] 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) (1) 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 to any
person whomsoever, with the object,
directly or indirectly, of inducing

(a) a person to stand or not to
stand as, or to 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
excommunication
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) The application under subsection (1) may be presented by any
candidate at the election of 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 candidate at the election.

(4) The authority to whom the
application under sub-section (1) is made
shall, in the matter of
144 INDIAN LAW REPORTS ALLAHABAD SERIES

(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 the
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
of 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
rehearing 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.

8. The language of Section 12-C of
the Act, 1947 clearly provides that the
election of a person appointed as Pradhan
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. The manner prescribed
is as per Uttar Pradesh Panchayat Raj
(Settlement of Election Disputes) Rules,
1994, which rules have been issued in
exercise of powers conferred by Section
110 along with Section 12-C and 12-D of
the Act, 1947.

9.
 Thus,
once
admittedly
the
respondent no. 5 was elected as Gram
Pradhan,
consequently
whether
the
procedure sought to be adopted by the
petitioner
by
filing
of
an
application/complaint under Section 6 A of
the
Act,
1947
by
invoking
the
disqualification against the respondent no.5
can be adopted or not, is the question which
is to be considered by us.

10. For this purpose, we would have
to consider the provisions of Section 6 A of
the Act, 1947 which for the sake of
convenience are reproduced below:-

"6-A. Decision on question as to
disqualification. If any question arises as
to whether a person has become subject to
any disqualification mentioned in Section
5-A or in sub-section (1) of Section 6, the
question shall be referred to the prescribed
authority for his decision and his decision
10 All. Devi Dayal Vs. State of U.P. & Ors.
145
shall, subject to the result of any appeal as
may be prescribed, be final."

11. The above provision requires that
the question whether a person has become
subject to any disqualification if arises, the
said question shall be referred to the
prescribed authority for his decision. Once
Section 6 A of the Act, 1947 uses a phrase
"whether a person has become subject to any
disqualification" the same clearly indicates a
stage anterior to the election inasmuch as the
words used are "has become" which denote
that such disqualification has been acquired
anterior to election.

12. This is the interpretation of Section
6 A of the Act, 1947 as given by this Court in
the case of Amrendra Singh Vs. State of
U.P and Ors reported in 2006 (1) AWC
917 wherein the Court has held as under:-

"The above provision require that
the question whether a person has become
subject to any disqualification if arises, the
said question shall be referred to the
prescribed authority for his decision. Section
6-A uses the phrase whether a person has
become subject to any disqualification. The
above words clearly indicate a stage anterior
to election. The word "has become" denotes
that such disqualification has been acquired
anterior to election...."

13. Thus, keeping in view the
interpretation given to Section 6 A of the
Act, 1947 by this Court in the case of
Amrendra Singh (supra) and admittedly
the respondent no. 5 having been elected as
a Gram Pradhan, it is apparent that an
application under Section 6 A of the Act,
1947 for setting aside the election of
respondent no. 5 by invoking this provision
would not lie for the purpose sought by the
petitioner.

14. Further, Article 243 (O) of the
Constitution of India reads as follows:-

Article-243-O.
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.

15. From a perusal of Article 243 (O)
(b) it is apparent that no election to any
Panchayat can 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.

16. The respondent no. 5 having been
elected as a Pradhan, as such the only
manner in which the said election can be
questioned, keeping in view the Article 243
(O) (b) of the Constitution of India, would
be by means of an election petition under
Section 12 (C) of the Act, 1947 and by no
other method.

17. As such, Section 6 A of the Act,
1947 would have to be read keeping in
view the specific provision of Article 243
(O) (b) of the Constitution of India.

18. This aspect of the matter has also
been considered by the Division Bench of
this Court in the case of Smt. Smt. Ram
Kanti Vs. District Magistrate and Ors
reported in 1995 AWC 1465 wherein the
146 INDIAN LAW REPORTS ALLAHABAD SERIES
Division Bench of this Court has held as
under:-

"From the above provisions, it is
thus, apparent that the State Election
Commissioner, District Magistrate and the
Election Officer are empowered to supervise,
control and conduct the election. After the
election is over, they lose all jurisdiction
over the matter and it is the Election
Tribunal alone, which is competent to deal
with the dispute arising out of or in
connection with the election. The meaning of
the word election and when does the election
process comes to an end has been considered
by the Supreme Court from time to time while
deciding the cases under the R.P. Act,
leading case being N.P. Punnuswami v.
Returning Officer AIR 1952 SC 64, wherein
the election was given the wide meaning so
as to connote the entire process culminating
in a candidate being declared elected. It,
thus, includes the entire procedure to be gone
through to return a candidate to the
Legislature. Same rule was reiterated in
Mohinder Singh Gill v. Chief Election
Commissioner AIR 1978 SC 851, wherein it
was laid down that the election commences
from the initial notification and culminates in
the declaration of the return of a candidate.
Election process, thus, comes to an end on
the final declaration of returned candidates.
As the pattern and the procedure for holding
the election under the Act and the Rules is
similar to that contained in the R.P. Act, the
same definition of election has to be applied
to the election held under the Act and the
Rules. After the election process has come to
an end, the State Election Commissioner,
District Magistrate and the Election Officer
lose all their jurisdiction and the only
authority, which can deal with and decide
any complaint regarding the election is the
Election Tribunal..."

 (emphasis by Court)

19. Likewise, the Division Bench of
this Court in the case of Shambhu Singh Vs.
State Election Commission, U.P and Ors
reported in 2000 (4) AWC 2777 has held as
under:-

".....In our view, on proper
interpretation of the Statute, after the
election process has come to an end, the
State
Election
Commissioner,
District
Magistrate and the Election Officer cease
to have any jurisdiction and the only
authority which can deal with and decide
any complaint regarding the election is the
Election Tribunal...."

20. The Apex Court in the cases of
N.P. Ponnuswami v. Returning Officer,
Namakkal Constituency; AIR 1952 SC 64
and Krishnamoorthy Vs. Sivakumar and
others; (AIR 2015 Vol-3 SCC 467) have
also held likewise.

21. Keeping in view the aforesaid
discussion, the writ petition is dismissed
leaving it open to the petitioner to avail other
remedies that may be available to him.
----------

(2021)10ILR A146
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.09.2021

BEFORE

THE HON'BLE J.J. MUNIR, J

Civil Misc. Transfer Application No. 207 of 2021

Anuj Kumar ...Applicant
Versus
Kshama ...Opposite Party

Counsel for the Applicant:
Sri Prabhakar Srivastava, Sri Pabhat Kumar
Srivastava