# Dr M Ismail Faruqui v. Shri Adityanath

- **Citation:** (2022) 11 ILRA 349
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-11
- **Case number:** Writ-C No. 7524 of 2022
- **Bench:** Attau Rahman Masoodi, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-m-ismail-faruqui-v-shri-adityanath-47824
- **Pages:** 5

## Headnote

A. Constitution of India - Article 226 -
Writ
-
Principle
of
res
judicata
-
Applicability - Earlier writ petition was
withdrawn - No liberty was given to file
fresh writ petition - Effect - Held, the
principles of res judicata are applicable to
writ petitions in the case - However, High
court without testing the writ petition on
the premise of res-judicata, granted the
concession of considering the writ petition
on merit. (Para 5)
B. Constitution of India - Article 164(4) -
Representation of People Act, 1951 -
Section 80 - Conduct of Election Rules,
1961 - R. 4A
- Challenge to the
continuance of Yogi Adityanath as the
Chief Minister of Uttar Pradesh - No
election petition was filed - Election of the
respondent was not found improper by
any competent authority - Effect - Held,
the petitioner under the garb of the writ
petition is actually seeking to challenge
the election of the Respondent from
Gorakhpur Urban Legislative Assembly -
The Petitioner by filing the writ petition is
trying to do something indirectly which
the law prohibits him to do directly. (Para
7 and 8)
C. Constitution of India - Article 226 -
Writ - Locus Standi of the petitioner -
Petitioner was not registered elector in
the Gorakhpur Urban Legislative Assembly
- Effect - Held, the petitioner does not
have any locus for filing the present writ
petition
- Case of Tej
Bahadur Vs
Narendra Modi relied upon. (Para 10)
D. Access to Justice - Misuse - Filing of
frivolous petition - Permissibility - Held,
no litigant has a right to unLtd. draught on
the court time and public money in order
to get his affairs settled in a manner as he
wishes. Easy access to justice should not
be
misused
as
a
licence
to
file
350 INDIAN LAW REPORTS ALLAHABAD SERIES
misconceived and frivolous petitions - Dr.
B.K. Subbarao's case relied upon. (Para
11)
E. Constitution of India - Article 226 -
Writ - Quo Warranto - Scope - Writ of
quo warranto can be issued only where an
appointment has not been made in
accordance with the law. (Para 12)
Writ petition dismissed. (E-1)
List of Cases cited:-

## Text

11 All. Dr M Ismail Faruqui Vs. Shri Adityanath
349
mentioned above the impugned judgment
and decree dated 23.02.2005 passed by
respondent
No.3,
judgment
dated
29.09.2007 passed by respondent No.2 and
judgment dated 08.10.2012 passed by
respondent No.1 are manifestly erroneous
and are liable to be set aside, the same are
hereby set aside.

24. The writ petition is allowed and
matter is remanded back before trial
court to decide the suit filed by
petitioners under Section 229-B of
U.P.Z.A. & L.R. Act on merit afresh
after affording proper opportunity of
hearing to the parties expeditiously
preferably within a period of six months
from the date of production of certified
copy of this order. Since petitioners
were
granted
interim-order
during
pendency of the writ petition before this
Court, even during pendency of the First
Appeal and Second Appeal interim order
was granted by courts below as such it is
directed that parties shall maintain status
quo
with
respect
to
nature
and
possession of the land in dispute and no
third parties interest be created in
respect to property in dispute.

25. No orders as to costs.
----------
(2022) 11 ILRA 349
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.11.2022

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ-C No. 7524 of 2022

Dr M Ismail Faruqui ...Petitioner
Versus
Shri Adityanath ...Respondent
Counsel for the Petitioner:
In Person

Counsel for the Respondents:
--

A. Constitution of India - Article 226 -
Writ
-
Principle
of
res
judicata
-
Applicability - Earlier writ petition was
withdrawn - No liberty was given to file
fresh writ petition - Effect - Held, the
principles of res judicata are applicable to
writ petitions in the case - However, High
court without testing the writ petition on
the premise of res-judicata, granted the
concession of considering the writ petition
on merit. (Para 5)
B. Constitution of India - Article 164(4) -
Representation of People Act, 1951 -
Section 80 - Conduct of Election Rules,
1961 - R. 4A
- Challenge to the
continuance of Yogi Adityanath as the
Chief Minister of Uttar Pradesh - No
election petition was filed - Election of the
respondent was not found improper by
any competent authority - Effect - Held,
the petitioner under the garb of the writ
petition is actually seeking to challenge
the election of the Respondent from
Gorakhpur Urban Legislative Assembly -
The Petitioner by filing the writ petition is
trying to do something indirectly which
the law prohibits him to do directly. (Para
7 and 8)
C. Constitution of India - Article 226 -
Writ - Locus Standi of the petitioner -
Petitioner was not registered elector in
the Gorakhpur Urban Legislative Assembly
- Effect - Held, the petitioner does not
have any locus for filing the present writ
petition
- Case of Tej
Bahadur Vs
Narendra Modi relied upon. (Para 10)
D. Access to Justice - Misuse - Filing of
frivolous petition - Permissibility - Held,
no litigant has a right to unLtd. draught on
the court time and public money in order
to get his affairs settled in a manner as he
wishes. Easy access to justice should not
be
misused
as
a
licence
to
file
350 INDIAN LAW REPORTS ALLAHABAD SERIES
misconceived and frivolous petitions - Dr.
B.K. Subbarao's case relied upon. (Para
11)
E. Constitution of India - Article 226 -
Writ - Quo Warranto - Scope - Writ of
quo warranto can be issued only where an
appointment has not been made in
accordance with the law. (Para 12)
Writ petition dismissed. (E-1)
List of Cases cited:-
1. Direct recruit class II engineering officers
Association Vs St. of Mah.; (1990) 2 SCC 715
2. Nazir Ahmed Vs Emperor; (1936) SCC Online
PC 41
3. Municipal Corporation of Greater Mumbai Vs
Abhilash Lal & ors.; (2020) 13 SCC 234
4. Krishna Ballabh Prasad Singh Vs Sub
Divisional Officer, Hilsa-Cum-Returning Officer &
ors.; (1985) 4 SCC 194
5. Indrajit Barua & ors. Vs Election Commission
of India & ors.; (1985) 4 SCC 722
6. Tej Bahadur Vs Narendra Modi; 2020) SCC
Online SC 951
7. Dr. B.K. Subbarao Vs Mr. K. Parasaran; (1996
(7) JT 265
8. Civil Appeal no. 6706 of 2022; St. of West
Bengal Vs Anindya Sundar Das decided on
11.10.2022
9. Bharati Reddy Vs St. of Karn.; (2018) 6 SCC
162
(Delivered by Hon'ble Attau Rahman
Masoodi, J. & Hon'ble Om Prakash
Shukla, J.)

1. The petitioner-in-person seeks liberty
to correct the name of the respondent as Ajay
Mohan Singh Bisht for and in place of Yogi
Adityanath, the sole respondent in the present
writ petition. We permit the petitioner to
correct the particulars of respondent during
the course of the day.

2. The prayer made in the writ
petition reads as under:-

(i) Issue a writ quo warranto to the
respondent very kindly questioning his
continuance as Chief Minister of State of
Uttar Pradesh with effect from 25.09.2022.

(ii) To pass any other appropriate
order as the circumstances of the case may
require; and

(iii) To allow the writ petition.

3. Apparently, the Petitioner at Para
19 of the Writ Petition has admitted that he
is neither an Elector nor a candidate at the
election
of
322-
Gorakhpur
Urban
Legislative Assembly constituency, from
which the Respondent stands elected. It is
also available from the Writ Petition that
the present petition has come to be filed on
the ground that (a) the respondent is a
usurper of office of Chief Minister of State
of
Uttar
Pradesh
with
effect
from
25.09.2022
and
(b)
Allegedly
the
Respondent was not qualified to contest the
election for the current legislative assembly
of State of Uttar Pradesh due to violation of
provisions of Rule 4 A of the Conduct of
Election Rules, 1961. Thus, in a nut-shell,
it has been prayed by the Petitioner for
issuance of Writ of Quo Warranto against
the Respondent for his continuation as
Chief Minister of State of Uttar Pradesh
with effect from 25.09.2022. The petitioner
has also relied upon a judgment passed by
the Kerala High Court in the case of Shaiju
J. Kooran & Etc. V/s State Election
Commission, Thirunanvanthapuram and
Ors. (AIR 2003 Kerala 246), wherein
election as municipal councillors and
panchayat member under the Kerala
Municipality Act was under challenge.

4. This court having given a
thoughtful consideration to the issue in
11 All. Dr M Ismail Faruqui Vs. Shri Adityanath
351
hand, finds the present petition to be very
amusing. The petitioner seems to be in a
spree of filing this kind of petition as
admittedly, an identical petition praying
inter-alia for the same relief vide W.P (C)
no. 5627 of 2022, was dismissed as
withdrawn. It would be interesting to note
the final order dated 29.08.2022 passed by
a coordinate division bench of this Court,
which inter-alia says:

"Heard the Petitioner appeared in
person and learned Advocate General for
the respondents - State.

After arguing at some length, learned
counsel for the petitioner states that he may
be permitted to withdraw the writ petition.

Accordingly, the writ petition is
dismissed as withdrawn."

5. Apparently, no leave nor any
liberty had been sought by the Petitioner to
file
the
present
Writ
Petition.
A
constitutional
Bench
of
the
Hon'ble
Supreme Court way back in the year 1990
has held that the principles of res judicata
are applicable to writ petitions in the case
of Direct recruit class II engineering
officers
Association
V/s
State
of
Maharashtra, (1990) 2 SCC 715, however
this court without testing the present writ
petition on the premise of res-judicata,
grants the concession of considering the
present writ petition.

6. Section 80 of the Representation of
People's Act, 1951 inter- alia states that no
election shall be called in question except
by an Election Petition presented in
accordance with the provisions of this part.
Essentially, the sum & substance of the
relief being sought by the Petitioner is on
the basis of an attack to the alleged
affidavit filed by the Respondent in terms
of the provisions of Rule 4 A of the
Conduct of Election Rules, 1961. It is the
case of the petitioner that since the said
affidavit was not as per the provisions of
the said rules, the election of the
respondent as a Member of the Legislative
Assembly was not legal and consequently,
even if, the respondent had been appointed
as a Chief Minister of the state of Uttar
Pradesh,
his
continuation
cannot
be
confirmed as per law in view of Article
164(4) of the Constitution of India, which
prescribes that a Minister who for any
period of six consecutive months is not a
member of the Legislature of the State shall
at the expiration of that period cease to be a
Minister.

7. In the first blush, the argument of
the petitioner seems to be very attractive,
but on a deep enquiry it is apparent that the
petitioner is drawing the aforesaid analogy
by presuming that the election of the
Respondent is not proper. The petitioner
besides drawing attention of this court to
the Affidavit filed by the respondent in
terms of Rule 4A of the Conduct of
Election Rules, 1961 has not been able to
show a single document which would show
that the election of the respondent has been
found by any competent authority to be not
proper. Having said so, this court finds that
the Petitioner under the garb of the present
petition is actually seeking to challenge the
election of the Respondent from 322 -
Gorakhpur Urban Legislative Assembly.

8. However, this court finds that the
said challenge to the election can be made
only by filing an Election Petition before
this court as per the conditions provided in
the Representation of Peoples Act, 1951.
Any challenge to an election is a statutory
right and is available to a person as has
been prescribed under the statute only. The
Petitioner has for obvious reasons not filed
352 INDIAN LAW REPORTS ALLAHABAD SERIES
the Election Petition in the present case &
has chosen to file the present Writ Petition
which is not permissible under the statute.
In fact the Petitioner by filing the present
Writ Petition is trying to do something
indirectly which the law prohibits him to do
directly. The principle that "if a statute
requires a thing to be done in a particular
manner, it should be done in that manner or
not at all" articulated in Nazir Ahmed vs.
Emperor (1936) SCC Online PC 41, has
found wide spread acceptance & has also
been reiterated by the Hon'ble Supreme
Court
recently
in
the
judgment
of
Municipal
Corporation
of
Greater
Mumbai vs. Abhilash Lal & Ors. (2020)
13 SCC 234.

9. Further, the Petitioner claims that the
provisions
of
Article
329
of
the
Constitution of India and Section 80 of the
Act are not applicable herein as no Election
Petition could have been filed, if at all,
preferred by the Petitioner questioning the
election of the Respondent on the grounds
mentioned in the present Writ Petition.
First and foremost as already held that the
relief being sought by the Petitioner could
have been granted in Election Petition only,
however this court finds that the Hon'ble
Supreme Court in case of Krishna Ballabh
Prasad Singh vs. Sub - Divisional Officer
Hilsa- Cum- Returning Officer & Ors.
(1985) 4 SCC 194 has held that the process
of Election comes to an end after the
declaration in Form 21-C was made and the
consequential formalities were completed,
the bar of clause D of Article 329 of the
Constitution of India came into operation
thereafter and an Election Petition alone
was maintainable thus the Hon'ble Supreme
Court held in that case that the Writ
Petition cannot be entertained. Thus, the
reliance placed by the petitioner in the
Shaiju J. Kooran case as mentioned supra is
misplaced. This court finds it profitable to
quote the observation made by the Hon'ble
Supreme Court relating to the filing of the
Petition
under
section
226
of
the
Constitution of India inter-alia challenging
the election to the state legislature which
has been sought to be similarly done in the
present case. The Hon'ble Supreme Court
in the case reported as Indrajit Barua and
ors. vs. Election Commission of India
and ors. (1985) 4 SCC 722 at Para 6, has
held inter-alia:

"These are clear authorities - and the
position has never been assailed - in
support of the position that an election can
be
challenged
only
in
the
manner
prescribed by the Act. In this view of the
matter, we had concluded that writ
petitions under Article 226 challenging the
election to the state legislature were not
maintainable and election petition under
section 81 of the Act had to be filed in the
High Court. The act does not contemplate a
challenge to the election to the Legislature
as a whole and the scheme of the Act is
clear. Election of each of the retuned
candidates has to be challenged by filing of
a
separate
election
petition.
The
proceedings under the act are quite strict
and clear provisions have been made as to
how an election petition has to be filed and
who should be parties to such election
petition. As we have already observed,
when election to a legislature is held it is
not one election but there are as many
elections as the Legislature has members.
The challenge to the elections to the Assam
Legislative Assembly by filing petitions
under Article 226 of the Constitution was,
therefore, not tenable in law."

10. The present petition is also liable
to be rejected in as much as the Petitioner
does not have any locus for filing the
11 All. Badri Vishal Tiwari Vs. State of U.P. & Ors.
353
present petition. As to who can prefer an
Election Petition, section 81 of the
Representation
of
People
Act,
1950
provides that an Election Petition may be
presented by (a) any elector or; (b) any
candidate at such election. Further the
explanation to section 81 provides that an
elector means a person who was entitled to
vote at the election to which the Election
Petition relates. In the present case, the
Petitioner has admitted that he is not an
elector registered in the 322 - Gorakhpur
Urban Legislative Assembly. Therefore,
this court finds that the petitioner does not
have any locus for filing the present writ
petition as has also been held in the case of
Tej Bahadur vs. Narendra Modi (2020)
SCC Online SC 951, wherein the Hon'ble
Apex court held that the locus for filing an
Election Petition depends entirely on the
question whether a particular person is an
elector of the constituency or is a candidate
or can claim to be a duly nominated
candidate. The Petitioner fails to fall in any
of the category to make the present petition
maintainable.

11. The courts have also from time to
time held that no litigant has a right to
unlimited draught on the court time and
public money in order to get his affairs
settled in a manner as he wishes. Easy
access to justice should not be misused as a
licence to file misconceived and frivolous
petitions. (See Dr. B.K. Subbarao vs. Mr.
K. Parasaran, (1996 (7) JT 265) as is being
sought to be done in the present case. The
court cannot be oblivious to the fact that
today people rush to Courts to file cases in
profusion under this attractive name of
public interest.

12. Further, the petitioner has failed to
show from records as to how the
appointment or the continuation of the
respondent in the Chief Minister post is not
in accordance with law. Recently the bench
of HMJ D.Y Chandrachud & HMJ Hima
Kohli in the case of "State of West Bengal
Vs Anindya Sundar Das" .........., while
referring to various judgments including
Bharati Reddy v. State of Karnataka (2018)
6 SCC 162, observed that the issue is no
longer res integra relating to the settled
position that the writ of quo warranto can
be issued only where an appointment has
not been made in accordance with the law.

13. For all the aforesaid reason the
present petition is dismissed, however since
valuable time has been spent by this court
on atleast two occasions, therefore this
court finds it appropriate to impose an
exemplary cost of Rs. 11,000/- on the
petitioner, which shall be paid to State legal
Services Authority Within four weeks from
today.
----------
(2022) 11 ILRA 353
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.11.2022

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ-C No. 23474 of 2016

Badri Vishal Tiwari ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Gaurav Mehrotra, Kunal Chandra Agrawal

Counsel for the Respondents:
C.S.C.

A. Civil Law - Indian Stamp Act, 1899 -
Section 47-A - UP Stamp (Valuation of
Property) Rules, 1997 - Rule 7(5) - Stamp
deficiency - Inquiry - Scope - Solely the