# Gyanveer Singh v. State of U.P. & Ors

- **Citation:** (2020) 9 ILRA 736
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-25
- **Case number:** WRIT - C No. 42478 of 2017
- **Bench:** Bala Krishna Narayana, Prakash Padia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gyanveer-singh-v-state-of-u-p-ors-46073
- **Pages:** 10

## Headnote

A. Election - Gram Pradhan - Constitution
of India - Article 243ZG, bar to interfere
by Courts in electoral matters - Art.226,
Quo warranto - a writ of quo warranto
challenging
Election to an office of Gram
Pradhan
cannot
be
entertained-
alternative remedy to file election petition
(Para 22)

B. Election - Gram Pradhan - U.P. Panchayat
Raj Act, 1947 - Section 6A, Decision on
question as to disqualification to hold office of
Gram Pradhan - election of the Gram Pradhan
could only be challenged by filing an election
petition U/s 6 -A of the U.P. Panchayat Raj
Act, 1947 (Para 23)

Fact - Writ in the nature of quo-warranto filed
against the Respondent No. 6 to vacate the post
of Gram Pradhan - allegation that R-6 working
on the post of clerk in Government aided
Institution - he neither resigned from the post of
clerk prior to his election nor after he was
elected - post comes within the purview of the
office of profit and attracts disqualification U/s
5-A (c) of U.P. Panchayat Raj Act, 1947 - Held -
in view of the provisions contained under subclause (b) of Article 243-ZG, section 6-A of the
U.P. Panchayat Raj Act, 1947 read with Rules 4,
5 and 6 of the Rules of 1994, writ petition under
Article 226 not at all maintainable before this
Court. (Para 23)

Dismissed. (E-5)

List of Cases cited: -

1.Smt. Sarita Devi VsSt. of U.P. &ors.
2011 (1) AWC 793

## Text

736 INDIAN LAW REPORTS ALLAHABAD SERIES
the
State
Government
through
the
Collector/District Magistrate has not taken
possession over the land in question, as
contemplated by law, the transfer of
possession
in
favour
of
the
local
authorities/development authorities cannot
be presumed under Government order. If
the possession of land has not been taken
by the State, as per the procedure already
determined by the Apex Court, the local
authorities//development authorities cannot
claim independent right over the land
merely on the strength of the Government
order."

38. Thus, we find that actual physical
possession of the petitioner's surplus land
was never taken by the State Government
from the petitioner and the petitioner stood
in possession of the land in question on the
date of the coming into force of the Repeal
Act, 1999. This writ petition deserves to be
allowed.

39. Accordingly, the writ petition is
allowed.

40. The impugned order dated 06.08.2018
is hereby quashed. A further direction is issued to
the respondents to expunge the name of
respondent-State from the revenue record and to
restore that of the petitioner who is the owner of
the land in question.
----------
(2020)09ILR A736
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.02.2020

BEFORE
THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE PRAKASH PADIA, J.

WRIT - C No. 42478 of 2017

Gyanveer Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Syed Safdar Ali Kazmi, Sri Babboo Ram

Counsel for the Respondents:
C.S.C., Sri Ashish Kumar Singh, Smt. Tahira
Kazmi, Sri Tarun Agarwal

A. Election - Gram Pradhan - Constitution
of India - Article 243ZG, bar to interfere
by Courts in electoral matters - Art.226,
Quo warranto - a writ of quo warranto
challenging
Election to an office of Gram
Pradhan
cannot
be
entertained-
alternative remedy to file election petition
(Para 22)

B. Election - Gram Pradhan - U.P. Panchayat
Raj Act, 1947 - Section 6A, Decision on
question as to disqualification to hold office of
Gram Pradhan - election of the Gram Pradhan
could only be challenged by filing an election
petition U/s 6 -A of the U.P. Panchayat Raj
Act, 1947 (Para 23)

Fact - Writ in the nature of quo-warranto filed
against the Respondent No. 6 to vacate the post
of Gram Pradhan - allegation that R-6 working
on the post of clerk in Government aided
Institution - he neither resigned from the post of
clerk prior to his election nor after he was
elected - post comes within the purview of the
office of profit and attracts disqualification U/s
5-A (c) of U.P. Panchayat Raj Act, 1947 - Held -
in view of the provisions contained under subclause (b) of Article 243-ZG, section 6-A of the
U.P. Panchayat Raj Act, 1947 read with Rules 4,
5 and 6 of the Rules of 1994, writ petition under
Article 226 not at all maintainable before this
Court. (Para 23)

Dismissed. (E-5)

List of Cases cited: -

1.Smt. Sarita Devi VsSt. of U.P. &ors.
2011 (1) AWC 793

2.
Jaspal Singh Arora
Vs
St. of
M.P. (1998) 9 SCC 594
9 All. Gyanveer Singh Vs. State of U.P. & Ors.
737
3. Gurdeep Singh Dhillon Vs Satpal
(2006) 10 SCC 616

4. Jyoti Basu Vs Debi Ghosal AIR 1982 SC 983

5. K. Venkatachalam Vs A. Swamickan & anr.
(1999) 4 SCC 526

(Delivered by Hon'ble Prakash Padia, J.)

1. The petitioner has preferred the
present writ petition with the prayer to
issue a writ in the nature of quo-warranto
against the Respondent No. 6 to vacate the
post of Gram Pradhan of Gram Panchayat
Gohra
Alamgirpur,
Block
Simbhawi,
Tehsil and District Hapur Forthwith with
the further prayer to issue a mandamus
directing the concerned respondent to
restrain the Respondent No. 6 from
functioning as Gram Pradhan of the village
in question.

2. Facts in brief as contained in the
writ petition are that in the Panchayat
General Elections of 2015 the respondent
no. 6 namely Sanchit son of Ramkishan
had filed his nomination papers on
23.11.2015 for the post of Gram Pradhan of
village
Panchayat
Gohra
Alamgirpur,
Block Simbhavli, Tehsil and District
Hapur.
General
Election
of
Gram
Panchayat in question was held on
01.12.2015 in which respondent no. 6 was
elected as Gram Pradhan. The petitioner
came to know regarding the fact that
respondent no. 6 was elected as Gram
Pradhan for the first time in the month of
April, 2017 and immediately thereafter he
moved an application asking certain
information's under Right to Information
Act, 2005 from the office of District
Inspector
of
Schools,
Hapur.
It
is
contended that the petitioner came to know
that the respondent no. 6 was working on
the post of Assistant Clerk in an institution
namely Sri Gandhi Smarak Inter College,
Hapur (hereinafter called as 'Institution').

3. It is stated in the writ petition that the
respondent no. 6 has not resigned from the
post of clerk prior to election of Gram
Pradhan nor after he was elected on the post
of Gram Pradhan. It is further stated in the
writ petition that the institution in question is
a Government aided Institution and all its
teachers and employees are getting their
salary from State Exchequer in terms of Uttar
Pradesh High Schools and Intermediate
Colleges (Payment of Salaries of Teachers
and Other Employees) Act, 1971. It is further
stated in the writ petition that the post on
which the respondent no. 6 is working comes
within the purview of the office of profit and
attracts disqualification U/s 5-A (c) of U.P.
Panchayat Raj Act, 1947.

4. It is further stated in the writ
petition that Part-IX of the Constitution of
India was inserted by the Seventy Third
Amendment Act, 1992 w.e.f. 24.04.1993.
By the aforesaid amendment Article 243-F
was also inserted in the constitution. Article
243-F is reproduced below:-

"243F
Disqualification
for
membership-

(1) A person shall be disqualified
for being chosen as and for being, a
member of a Panchayat-

(a) if he is so disqualified by or
under any law for the time being in force
for the purposes of elections to the
Legislature of the State concerned:

Provided that no person shall be
disqualified on the ground that he is less
than twenty-five years of age, if he has
attained the age of twenty-one years;

(b) if he is so disqualified by or
under any law made by the Legislature of
the State.
738 INDIAN LAW REPORTS ALLAHABAD SERIES

(2) If any question arises as to
whether a member of a Panchayat has
become
subject
to
any
of
the
disqualifications mentioned in clause (1)
the question shall be referred for the
decision of such authority and in such
manner as the Legislature of State may, by
law, provide."

5. It is further stated in the writ
petition that the sub clause (a) of Article
191 of the Constitution of India deals with
the disqualifications for membership of the
Legislative
Assembly
or
Legislative
Council of a State. Relevant portion of
Article 191 is reproduced below:-

"Article 191 Disqualification for
membership-

(1) A person shall be disqualified
for being chosen as, and for being, a
member of the Legislative Assembly or
Legislative Council of a State-

(a) if he holds any office of profit
under the Government of India or the
Government of any State specified in the
First Schedule, other than an office
declared by the Legislature of the State by
law not to disqualify its holder;"

6. In this view of the matter it is
argued that in terms of the provisions
contained under section 5-A (c) of the U.P.
Panchayat Raj Act, 1947 as well as under
Article 191 (1) (a) of the Constitution of
India since the respondent no. 6 holds the
office of clerk in the institution in question
which comes within the purview of office
of profit as such the respondent no. 6 was
not qualified to contest the election of
Gram Pradhan. Learned counsel for the
petitioner also relied upon a Division
Bench judgment of this Court in the case of
Smt. Sarita Devi versus State of U.P. and
others 2011 (1) AWC 793.

7. It is further argued that the
respondent no. 6 being disqualified has no
authority to hold the office of Gram
Pradhan and writ of quo-warranto be
issued. It is further argued that the
petitioner not being a candidate in the
election could not have filed an election
petition and the only remedy left to the
petitioner is to challenge the election by
means of filing the present writ petition. In
this view of the matter it is argued that the
writ of quo-waranto be issued against the
respondent no. 6.

8.

Learned
Standing
Counsel
appearing on behalf of respondent nos. 1, 2
and 4 as well as Sri Ashish Kumar Singh
learned counsel for respondent no. 6 argued
that the present writ petition filed on behalf
of petitioner is not at all maintainable. It is
further argued that the present writ petition
is barred by the provisions of Article 243ZG of the Constitution of India. It is further
argued that the election could only be
challenged by filing election petition and
not by filing a writ petition before this
Court in the nature of quo warranto.

9. With the consent of the learned
counsel for the parties, the present writ
petition is decided finally in terms of the
Rules of the Court.

10. We have heard the submissions of
the counsel for the parties and have perused
the record. The petitioner has preferred the
present writ petition challenging the
election of respondent no. 6 as Gram
Pradhan
of
Gram
Panchayat
Gohra
Alamgirpur, Block Simbhawi, Tehsil and
District Hapur. It is relevant to mention
hear that the petitioner in paragraph-2 of
the present writ petition mentioned that the
petitioner is the elector/voter of Gram
Panchayat in question from which the
9 All. Gyanveer Singh Vs. State of U.P. & Ors.
739
respondent no. 6 has been elected as Gram
Pradhan.

11. From the pleadings of the
petitioner as stated above, it is clear that the
challenge in the present writ petition is
essentially to the election of the respondent
no.6. The election of the Gram Pradhan
was held in accordance with the provisions
contained of the U.P. Panchayat Raj Act,
1947. The aforesaid election could only be
challenged by filing an election petition as
provided under the relevant rules. Whether
election to an office of Gram Panchayat has
to be challenged under the Statutory rules
and whether a writ of quo-warranto should
be entertained by this Court under Article
226 of the Constitution of India, are the
questions to be answered.

12. Under Section 5-A of the U.P.
Panchayat Raj Act 1947 (here-in-after
called as Act '1947') deals with the
disqualification of the membership. The
relevant portion of Section 5-A of the Act
of 1947 is reproduced below:-

"[5-A.
Disqualification
of
membership-A person shall be disqualified
for being chosen as, and for being [the
Pradhan or] a member of a Gram
Panchayat, if he-

(a) is so disqualified by or under
any law for the time being in force for the
purpose
of
elections
of
the
State
Legislature.

Provided that no person shall be
disqualified on the ground that he is less
than twenty-five years of age, if he has
attained the age of twenty-one-years.

(b) is a salaried servant of the
Gram Panchayat or a Nayaya Panchayat;

(c) holds any office of profit
under a State Government or the Central
Government or a [local authority other
than
a
Gram
Panchayat
or
Nyay
Panchayat;
or
a
Board,
Body
or
Corporation owned or controlled by a State
Government or the Central Government;

(d) has been dismissed from the
service of State Government, the Central
Government or a local authority or a
Nyaya Panchayat for misconduct;

(e) is in arrears of any tax, fee,
rate or any other dues payable by him to
the Gram Panchayat, Kshettra Panchayat
or Zila Panchayat for such period as may
be prescribed, or has, in spite of being
required to do so by the Gram Panchayat,
Kshettra Panchayat or Zila Panchayat
failed to deliver to it any record or
property belonging to it which had come
into his possession by virtue of his holding
any office under it;

(f)
is
an
undischarged
involvement;

(g) has been convicted of an
offence involving moral turpitude;

(h)
has
been
sentenced
to
imprisonment for a term exceeding three
months for contravention for any order
made under the Essential Commodities Act,
1955;

(I)
has
been
sentenced
to
imprisonment for a term exceeding six
months
or
to
transportation
for
contravention of any order made under the
Essential Supplies (Temporary Powers)
Act, 1946 or the U.P. Control of Supplies
(Temporary Powers) Act, 1947;

(j)
has
been
sentenced
to
imprisonment for a term exceeding three
months under the U.P. Excise Act, 1910;

(k) has been convicted of an
offence under the Narcotic Drugs and
Psychotrapic Substances Act, 1985;

(l) has been convicted of an
election offence;

(m) has been convicted of an
offence under the U.P. Removal of Social
740 INDIAN LAW REPORTS ALLAHABAD SERIES
Disabilities Act, 1947 or the Protection of
Civil Rights Act, 1955; or

(n) has been removed from office
under sub-clauses (iii) or (iv) of Clause (g)
of sub-section (1) of Section 95 unless such
period, as has been provided in that behalf
in the said section or such lesser period as
the State Government may have ordered in
any particular case, has elapsed;

Provided that the period of
disqualification under Clauses (d), (f), (g),
(h), (i), (j), (k), (l) or (m) shall be five years
from such date as may be prescribed.

Provided
further
that
the
disqualification under Clause (e) shall
cease upon payment of arrears or delivery
of the record of property, as the case may
be;

Provided
also
that
a
disqualification under any of the clauses
referred to in the first proviso may in the
manner prescribed, be removed by the
State Government."

13. Under Section 6-A of the U.P.
Panchayat Raj Act, 1947, it is provided that
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
shall, subject to the result of any appeal as
may be prescribed, be final. Section 5 and
6-A of the U.P. Panchayat Raj Act, 1947 is
reproduced below:-

"6-A. Decision on question as to
disqualifications.- 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
shall, subject to the result of any appeal as
may be prescribed, be final."

14. Rules were also framed by the
State Government for settlement of dispute
of disqualification in the year 1994 namely
U.P. Panchayat Raj (Computation of period
of
Five
years
for
removal
of
Disqualification, Fixation of period of Dues
etc
and
Settlement
of
Dispute
of
Disqualification) Rules, 1994. Under Rule
4 of the Rules of 1994 it is provided that an
application
for
removal
of
the
disqualification under clauses (d), (f), (g),
(i), (j), (k), (I) or (m), of Section 5-A of the
Act of 1947, shall be in the form given in
the Appendix and shall show the grounds
upon which the applicant claims removal of
the disqualification. It is further stated
under Sub Rule (2) of the Rule 4 that the
application shall be presented to SubDivisional
Officer
of
Sub-Division
concerned. It is further provided under Subrule (3) of Rule 4 that the Sub-Divisional
Officer may, after such inquiry as he may
deem fit either accept the application and
remove the disqualification or reject the
application. Under Rule 5 of the Rules of
1994 it is clearly stated that the question
regarding disqualification shall be referred
to the Tehsildar as referred under section 6A of the Act of 1947. Relevant Rules
namely Rule 4, 5, 6 as well as Appendix
contained under the Rules of 1994 are
reproduced below:-

"4. Removal of disqualification
under Section 5-A.-(1) An application for
removal of the disqualification under
clauses (d), (f), (g), (I), (j), (k), (l) or (m), of
Section 5-A of the Act, shall be in the form
given in the Appendix and shall show the
grounds upon which the applicant claims
removal of the disqualification.
9 All. Gyanveer Singh Vs. State of U.P. & Ors.
741

(2) The application shall be
presented to Sub-Divisional Officer of SubDivision concerned.

(3) The Sub-Divisional Officer
may, after such enquiry as he deems fit, either
accept the application and remove the
disqualification or reject the application.

(4) A copy of the order passed
under
sub-rule
(3),
removing
the
disqualification shall be sent to the
secretary
of
the
concerned
Gram
Panchayat
and
to
the
Assistant
Development Officer (Panchayat) and to
the concerned Kshettra Panchayat.

5. Reference under Section 6-A
pertaining to disqualification.-(a) Where
any question as is referred to in Section 6A of the Act is raised otherwise than in a
claim or objection, it shall be referred to
the Tehsildar by the officer or authority
before whom such question arises for
consideration.

(2) On the receipt of a reference
under sub-rule (1) the Tehsildar shall fix
the date, time and place for its hearing and
shall give notice to the parties concerned.

(3) The Tehsildar shall, after
hearing the parties and after such other
enquires as he deems fit, give his decision
of the question referred to him.

(4) Any person aggrieved by the
order of the Tehsildar may, within fifteen
days of the date of such order, prefer an
appeal to the Sub-Divisional Officer.

(5) The Sub-Divisional Officer
shall, after notice to the parties and after
hearing such of them as desire to be heard,
dispose of the appeal.

(6) A copy of the final order
passed on the question referred to the
Tehsildar as modified in appeal, if any,
shall be forwarded to the Secretary of the
Gram Panchayat and to the Assistant
Development Officer (Panchayat) of the
concerned Kshettra Panchayat.

6. Disqualification on account of
non-payment of tax, etc.-(1) A person shall
be disqualified under clause (c) of Section
5-A of the Act for being chosen as, and for
being a member of the Gram Panchayat, if
he is in arrears of any tax, fee, rate or any
other dues payable by him to the Gram
Panchayat, Kshettra Panchayat or Zila
Panchayat for a period exceeding one year
or if he fails to produce certificate from the
Secretary of the Gram Panchayat, Khand
Vikas Adhikari or Mukhya Adhikari, as the
case may be, regarding delivery of the
record of property belonging to Gram
Panchayat, Kshettra Panchayat or Zila
Panchayat which had come into his
possession by virtue of his holding any
office under it:

Provided that in the case of a
person who is a candidate for being elected
or is being nominated or appointed to any
office in the Gram Panchayat the said
disqualification shall cease as soon as the
arrears paid on before his nomination
paper for election is rejected or he is
nominated or appointed, as the case may
be.

(2) The secretary of the Gram
Panchayat shall, in Form II given in the
Appendix, prepare a list of all such
persons, who, according to the record of
the Gram Panchayat, are in arrears of any
tax, fee, rate or any other dues as
aforesaid.

(3) the list prepared under subrule (2) shall be published by affixing it on
Notice Board of the office of the Gram
Panchayat and an announcement to this
effect shall also be made by beat of drum in
the Panchayat area.

(4) The name of the person who
has paid, whether under protest or
otherwise, all the arrears shown against his
name in the list shall be struck off the list. A
receipt issued by the Secretary of the Gram
742 INDIAN LAW REPORTS ALLAHABAD SERIES
Panchayat, Khand Vikas Adhikari or
Mukhya Adhikari, as the case may be, in
payment of any such amount shall be
conclusive proof of the fact that the person
is not in arrears of tax, fee or rate, as the
case may be."
Appendix Form [Rule 4 (1)]

Application
for
removal
of
disqualifications in clause (d), (f), (g), (h),
(I), (j), (k), (l) or (m) of Section 5-A of the
United Provinces Panchayat Raj Act, 1947.

1.
Name
of
applicant.......................................................
...........

2.
Father's/Husband's
name.......................................................

3.
Village/Gram
Panchayat....................................................
...

4.
House
Number.........................................................
.............

5.
Details
of
Disqualification............................................
.........

6.
Date/Dates
from
which
disqualification incurred...................

7.
Grounds
for
removal
of
disqualification..................................

8.
Remarks........................................................
.........................

Place................
Signature.....................

Date...................
Name...........................

Note-Except of the electoral roll
of the concerned territorial constituency of
the Gram Panchayat shall be enclosed
herewith.

15.

Article
243-ZG
of
the
Constitution of India provides for Bar to
interference by courts in electoral matters
which is quoted below:

"Art.243ZG.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 243ZA shall not be
called in question in any court;

(b)
no
election
to
any
Municipality 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."

16. It would be better to consider as to
whether bar provided under Article 243-ZG
(b) is an absolute bar or not. At least from
the language of clause (b), it is clear that
the bar is absolute Normally, where such a
bar is expressed in a negative language as
is the case here, it has to be held that the
tone of clause (b) is mandatory and the bar
created therein is absolute.

17. Supreme Court in the case of
Jaspal Singh Arora v. State of M.P.
reported in (1998) 9 SCC page 594 has
already held the bar to be absolute. In this
case election of the petitioner as the
President of the Municipal Council was
challenged by a writ petition under Article
226, which was allowed setting aside the
election of the petitioner. In paragraph 3 of
the aforesaid judgment the Supreme Court
observed as follows:-

"3. ... it is clear that the election
could not be called in question except by an
election petition as provided under that
Act. The bar to interference by courts in
electoral matters contained in Article 243ZG of the Constitution was apparently
overlooked by the High Court in allowing
the writ petition. Apart from the bar under
9 All. Gyanveer Singh Vs. State of U.P. & Ors.
743
Article 243-ZG, on settled principles
interference under Article 226 of the
Constitution for the purpose of setting
aside election to a municipality was not
called
for
because of
the
statutory
provision for election petition...."

18. Again the Supreme Court in the
case of Gurdeep Singh Dhillon v. Satpal
reported in (2006) 10 SCC page 616, after
quoting Article 243-ZG(b) was pleased to
observed that the shortcut of filing the writ
petition
and
invoking
constitutional
jurisdiction of the High Court under
Articles 226/227 was not permissible and
the only remedy available to challenge the
election was by raising the election dispute
under the local statute.

19. Apart from the same the Supreme
Court in the case of Jyoti Basu Vs. Debi
Ghosal, reported in AIR 1982 SC 983, has
laid down following:-

"A right to elect, fundamental
though it is to democracy, is, anomalously
enough, neither a fundamental right nor a
common law right. It is pure and simple, a
statutory right. So is the right to be elected.
So is the right to dispute an election.
Outside of statute, there is no right to elect,
no right to be elected and no right to
dispute an election. Statutory creations
they are, and therefore, subject to statutory
limitation. An election petition is not an
action at common law, nor in equity. It is a
statutory proceeding to which neither the
common law nor the principles of equity
apply but only those rules which the statute
makes and applies. It is a special
jurisdiction, and a special jurisdiction has
always to be exercised in accordance with
the statute creating it. Concepts familiar to
common law and equity must remain
strangers to election law unless statutorily
embodied. A court has no right to resort to
them on considerations of alleged policy
because policy in such matters as those,
relating to the trial of election disputes, is
what the statute lays down. In the trial of
election disputes, court is put in a strait-
jacket. Thus the entire election process
commencing from the issuance of the
notification calling upon a constituency to
elect a member or members right up to the
final resolution of the dispute, if any,
concerning the election is regulated by the
Representation of the People Act, 1951,
different stages of the process being dealt
with by different provisions of the Act.
There can be no election to Parliament or
the State Legislature except as provided by
the Representation of the People Act, 1951
and again, no such election may be
questioned except in the manner provided
by the Representation of the People Act. So
the Representation of the People Act has
been held to be a complete and selfcontained code within which must be found
any rights claimed in relation to an election
or an election dispute. ........."

20. The Supreme Court in the case of
K. Venkatachalam Vs. A. Swamickan &
Anr, (1999) 4 SCC 526 held that in such a
situation writ of quo-warranto is not
maintainable. Relevant paragraphs of the
aforesaid judgment namely paragraph, 27,
29, 31 and 34 are quoted below:-

"27. We are afraid, we are not in
position to agree with the contention that
K. Venkatachalam v. A Swamickan & Anr.
(1999) 4 SCC 526 is applicable to the
present situation. Here the appellant had
very specifically asserted in his counter
affidavit that he did not belong to the
Christian religion and that he further
asserted that he was a person belonging to
the Scheduled Caste. Therefore, the Caste
744 INDIAN LAW REPORTS ALLAHABAD SERIES
status of the appellant was a disputed
question of fact depending upon the
evidence. Such was not the case in K.
Venkatachalam v. A Swamickan & Anr.
(1999) 4 SCC 526. Every case is an
authority for what is actually decided in
that. We do not find any general
proposition that even where there is a
specific remedy of filing an Election
Petition and even when there is a disputed
question of fact regarding the caste of a
person who has been elected from the
reserved constituency still remedy of writ
petition under Article 226 would be
available.

29.Shri Gupta, however, further
argued that in the present case what was
prayed for was a writ of quo warranto and
in fact the election of the appellant was not
called in question. It was argued that since
the writ petitioners came to know about the
appellant not belonging to the Scheduled
Caste and since the post of the Chairperson
was reserved only for the Scheduled Caste,
therefore, the High Court was justified in
entering into that question as to whether he
really belongs to Scheduled Caste.

31. It is an admitted position that
Ward No.8 was reserved for Scheduled
Cast and so also the Post of Chairperson.
Therefore, though indirectly worded, what
was in challenge in reality was the validity
of the election of the appellant. According
to the writ petitioners, firstly the appellant
could not have been elected as a Ward
member nor could he be elected as the
Chairperson as he did not belong to the
Scheduled Caste. We can understand the
eventuality where a person who is elected
as a Scheduled Caste candidate, renounces
his caste after the elections by conversion
to some other religion. Then a valid writ
petition for quo warranto could certainly
lie because then it is not the election of
such person which would be in challenge
but his subsequently continuing in his
capacity as a person belonging to a
particular caste.

34.Once it is held that the
aforementioned case was of no help to the
respondents, the only other necessary
inference which emerges is that the bar
under Article 243-ZG would spring in
action. "

21. The Apex Court in the aforesaid
judgment has also noticed the submission
as to whether the writ of quo warranto can
be issued when an incumbent is holding an
elected office by virtue of election. The
answer was given in negative. It was held
that challenge essentially is to the election
of an elected candidate and hence the bar
under Article 243 ZG is attracted.

22. In so far as the judgment delivered
by a Division Bench of this Court in the
case of Smt. Sarita Devi (Supra) relied
upon by the counsel for the petitioner is
concerned, the said judgment does not help
the petitioner. The said judgment is an
authority that Anganbari Workers are
disqualified from contesting the election of
Panchayat and they are not eligible to
contest the Panchayat election, but the said
case was not a case challenging any
election, but the question which was
considered in the said case was whether the
State Election Officer has any right to
debar the Siksha Mitra/Anganbari Worker
from contesting the Panchayat Election
and, whether the honorarium received by
Shiksha Mitra and/or Aanganbari workers
for rendering their respective services falls
within the purview of "office of profit."
There cannot be any dispute to the
propositions as laid down in the said case.
However, the said judgment does not help
the petitioner in the present case, and it is
not an authority for the proposition to hold
9 All. Yasir Ali Khan Vs. State of U.P. & Ors.
745
that election of an elected member of Gram
Panchayat can be challenged by filing a
writ of quo-warranto.

23. From the facts and circumstances as
stated above, it is clear that in view of the
provisions contained under sub-clause (b) of
Article 243-ZG, section 6-A of the U.P.
Panchayat Raj Act, 1947 read with Rules 4, 5
and 6 of the Rules of 1994, the present writ
petition filed by the petitioner is not at all
maintainable before this Court. The only
remedy available to the petitioner to file an
election petition as provided under section 6-A
of the U.P. Panchayat Raj Act, 1947. Writ
petition is liable to be dismissed on the ground
of availability of alternative remedy.

24. Accordingly, the writ petition is
dismissed on the ground of availability of
alternative remedy to the petitioner.
----------
(2020)09ILR A745
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.02.2020

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE RAVI NATH TILHARI, J.

WRIT - C No. 44309 of 2017

Yasir Ali Khan ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Birendra Pratap Singh

Counsel for the Respondents:
C.S.C., Sri Mahendra Pratap

A.
Admission
-Medical
Education-NEET
2017-Refund of Security Money -Clause VIII
of G.O. dated 03.07.2017 provides if any
candidate fails to take admission in allotted
college or leaves the college his security
money shall not be refunded - Held - Clause
VIII cannot be read in isolation other
provisions of the said G.O are also to be read
together particularly which fixed date for
declaration of result - security amount can
be forfeited if the time schedule for
declaration of result is strictly adhered to -
But if result is not declared in time and is
delayed Clause VIII cannot be invoked to
forfeit the security money - Reading clause
VIII in isolation would confer arbitrary
powers on the authorities to forfeit the
security money even in those cases where
the fault does not lie on the part of the
candidate but lies on the authorities -
Authorities cannot take advantage of its
own wrong (Para 27)

Facts - As per Schedule of NEET 2017 result was
to be declared on 19.08.2017, candidate to take
admission on 20th & 21st August, 2017 - In fact
result published on 20.08.2017 - Petitioner could
not get reasonable time for approaching allotted
college for admission - Held - fault lies on the
part of the respondents in not adhering to the
time schedule in publication of the result -
Respondents directed to refund the amount of
security money to the petitioner (Para 27, 30, 32)

B. Education- Medical Education - Admission
-Regulations on Graduate Medical Education
-No direction can be given to take admission
in the first year MBBS Course, after 31st
August, 2017 -in view of Supreme Court
decision in the case of Ashish Ranjan vs.
Union of India, (2016)11 SCC 225 (Para 11)

Allowed in Part. (E-5)

List of Cases cited: -

1. Ashish Ranjan Vs Union of India, (2016)11 SCC 225

2. Priya Gupta Vs St. of Chhatisgarh & ors.
(2012) 7 SCC 433

3. Mridul Dhar Vs Union of India (2005) 2 SCC 65

4. Royal Medical Trust (Regd.) & anr. Vs Union
of India & anr. (2015) 10 SCC 19