# Khem Singh Pachhara v. State of U.P. and others

- **Citation:** (2011) 2 ILRA 548
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-04-21
- **Case number:** Civil Misc. Writ Petition No. 4567 of 2011
- **Bench:** Ashok Bhushan, Ran Vijay Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/khem-singh-pachhara-v-state-of-u-p-and-others-41919
- **Pages:** 7

## Headnote

Sri P.K.Mishra
Sri B.D. Madhyan
Sri Satish Mandhayan
Sri S.K. Tripathi
C.S.C.

Constitution of India Art. 226, 243-ZG-
Writ Jurisdiction-Scope-Petition of Quo
Warranto-Questioning the eligibility and
election of Respondent No. 8 as member
of Nagar Panchayat-argument that the
petitioner is not a candidate-can not be
forced
to
file
election
petition-held
misconceived-in view of clear cut bar
contained
under
Art.
243Z-G
only
remedy to file election Petition.

Held: Para 21

The Apex Court in the said 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 the appellant and hence the
bar under Article 243 ZG is attracted. The
appeal was allowed and the judgement
of the High Court was set-aside. The
above judgment of the Apex Court
applies in the facts of the present case
2 All] Khem Singh Pachhara V. State of U.P. and others
549
and in view of the law laid down by the
Apex Court in Kurapati Maria Das case
(supra), the writ petition cannot be
entertained.
Case law discussed:
2010 (10) ADJ 484, JT (2009) 7 SCC 387, AIR
1982 SC 983, 1999 (4) SCC 526

## Text

548 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
infirmity and whole action of the authority
is in great disregard of the principles of
natural justice.

31.

After
peeping
into
the
contentions of both the parties and the
series of case laws, referred to above, I am
of the considered opinion that the
cancellation of a agreement/licence of a
party is a serious business and cannot be
taken lightly. In order to justify the action
taken to cancel such an agreement/licence,
the authority concerned has to act fairly
and
in
complete
adherence
to
the
rules/guidelines framed for the said
purposes including the principles of natural
justice. The non-supply of a document
utilized against the aggrieved person
before the cancellation of his allotment of
fair price shop licence/agreement offends
the well-established principle that no
person should be condemned unheard.

32. Thus from the series of decisions,
referred to hereinabove, it clearly comes
out that the preliminary enquiry report,
inspection report or complaint or any other
document which is utilized by the authority
while cancelling the licence of a fair price
shop licence, same has to be supplied to
the licence holder and personal hearing is
also
to
be
afforded
otherwise
the
proceedings would be in blatant disregard
of the principles of natural justice.

33. In view of the above, the
impugned orders passed by the appellate
authority and the order of cancellation are
hereby quashed. Needless to say that this
order shall not preclude the competent
authority from passing appropriate order in
accordance with law.

34. All the writ petitions stand
allowed in above terms.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.04.2011

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE RAN VIJAY SINGH, J.

Civil Misc. Writ Petition No. 4567 of 2011

Khem Singh Pachhara
 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Swarn Kumar Srivastava
Sri Anil Kumar Srivastava

Counsel for the Respondents:
Sri P.K.Mishra
Sri B.D. Madhyan
Sri Satish Mandhayan
Sri S.K. Tripathi
C.S.C.

Constitution of India Art. 226, 243-ZG-
Writ Jurisdiction-Scope-Petition of Quo
Warranto-Questioning the eligibility and
election of Respondent No. 8 as member
of Nagar Panchayat-argument that the
petitioner is not a candidate-can not be
forced
to
file
election
petition-held
misconceived-in view of clear cut bar
contained
under
Art.
243Z-G
only
remedy to file election Petition.

Held: Para 21

The Apex Court in the said 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 the appellant and hence the
bar under Article 243 ZG is attracted. The
appeal was allowed and the judgement
of the High Court was set-aside. The
above judgment of the Apex Court
applies in the facts of the present case
2 All] Khem Singh Pachhara V. State of U.P. and others
549
and in view of the law laid down by the
Apex Court in Kurapati Maria Das case
(supra), the writ petition cannot be
entertained.
Case law discussed:
2010 (10) ADJ 484, JT (2009) 7 SCC 387, AIR
1982 SC 983, 1999 (4) SCC 526

(Delivered by Hon'ble Ashok Bhushan,J.)

1. Heard learned counsel for the
petitioner, Shri B.D. Mandhyan, learned
senior counsel for respondent no.8, Shri
P.K. Mishra for respondent no.2 and the
learned Sanding Counsel.

2. This writ petition, petitioner has
prayed for a issue of writ, order or
direction in the nature of quo warranto
directing
the
District
Election
Officer/District Magistrate Mathura to
quash the election of the respondent
no.8, as Member of Kshettra Panchayat
Raya Ward No. 72 Gram Panchayat
Lohwan Block Raaya Tehsil Mahawan
District Mathura.

3. Counter and rejoinder affidavits
have been exchanged between the parties
and with the consent of the parties this
writ petition is finally decided.

4. Brief facts which emerge from
the pleadings of the parties are:The
petitioner claims to be a social worker
and resident of Block Raaya Tehsil
Maant, District Mathura. Election for
Member of Kshettra Panchayat Raaya,
Ward No.72 was held. The respondent
no.8 filed her nomination and contested
the election and was declared elected on
30/10/2010 as Member from Ward
No.72. The petitioner who was not a
contesting candidate in the election has
come up in this writ petition challenging
the election of the respondent no.8.

5. The petitioner's case in the writ
petition is that the respondent no.8, being
an
Anganbari Karyakarti,
was
not
eligible to contest the election as it is in
violation of the order dated 28/6/2010,
issued by the State Election Commission,
U.P. The State Election Commission,
U.P.
by
Government
Order
dated
28/6/2010, has informed all the District
Magistrates
that
the
Anganbari
Worker/Sahayika, Asha Bahu, Kissan
Mitra, Shiksha Mitra and Gram Rozgar
Sewak etc. who received honorarium
from the State Government cannot
contest the election of Gram Panchayat
and local bodies. The petitioner's case
further is that the respondent no.8,
submitted her resignation on 22/12/2010,
much after she was elected as Member,
Kshettra Panchayat Raaya, Ward No.72,
which information has been provided
under the Right to Information Act by
Bal Vikas Pariyojana Adhikari, Mathura.

6. In the counter affidavit, filed by
the respondent no.8, it has been stated
that the petitioner neither being a
candidate nor anyway connected with the
election has no locus standi to challenge
the election of the respondent no.8, by
filing this writ petition. It has further
been submitted that against the election
of respondent no.8, two election petitions
have already been filed in the Court of
District Judge, Mathura one by Smt.
Radha and another by Sri. Arvind
Kumar. It has been stated that the
remedy of challenging the election, if
any is only by filing election petition and
the election of respondent no.8, cannot
be challenged by means of writ petition.
It has further been submitted that the
respondent
no.8,
before
filing
her
nomination
as
Member
Kshettra
Panchayat has already submitted her
550 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
resignation as Anganbari Worker and
was fully eligible for contesting the
election. It has further been pleaded that
her resignation was submitted in the
office of District Programme Officer,
Mathura
which
was
received
on
04/10/2010. The report submitted by the
Bal Vikas Pariyojana Adhikari, that the
respondent no.8 resigned on 22/12/2010,
is not correct. It has further been
submitted that the respondent no.8 has
not received any honorarium after
04/10/2010.

7. Rejoinder affidavit has been filed
by the petitioner reiterating that the
respondent no.8 being an Anganbari
Worker was disqualified from contesting
the election. Reliance has been placed on
the Division Bench judgment of this
Court in Srimati Sarita Devi Vs. State
of U.P. & Ors, 2010 (10) ADJ 484.

8.

Learned
counsel
for
the
petitioner in support of the writ petition
contended that the Anganbari worker
holds the office of profit and is clearly
disqualified from contesting the election
as per the government Order dated
28/6/2010,
issued
by
the
State
Government as has been laid down by
the Division Bench judgment in Srimati
Sarita Devi's case (supra). It is
submitted that the respondent no.8, being
disqualified has no authority to hold the
office of member of Kshettra Panchayat
and a writ of quo warranto be issued. It is
submitted that the petitioner being not a
candidate in the election cannot file an
election petition and the only remedy left
to the petitioner is to challenge the
election by means of filing the writ
petition. It is submitted that the writ of
quo warranto is clearly maintainable.

9. Shri B.D. Mandhyan, learned
senior counsel appearing for respondent
no.8, submitted that this writ petition is
essentially a writ petition challenging the
election of respondent no.8. He submits
that this writ petition is clearly barred
under the provisions of Article 243 ZG
of the Constitution of India. He submits
that the only remedy left to the petitioner
was to challenge the election by filing an
election petition in accordance with the
Rules framed under the Uttar Pradesh
Kshettra Panchayat and Zila Parishad
Adhiniyam, 1961, hereinafter called the
"Act, 1961".

10. Shri P.K. Mishra, learned
counsel appearing for the respondent
no.2, has also submitted that this writ
petition is not maintainable. He has
placed reliance on the judgment of the
Apex Court in Kurapati Maria Das Vs.
Dr. Ambedkar Seva Samajan & Ors,
JT (2009) 7 SCC 387.

11 . We have heard the submissions
of the learned counsel for the parties and
have perused the record.

12. The petitioner who claims to be
a social worker, by means of this writ
petition is challenging the election of
respondent no.8 as Member of Kshettra
Panchayat Raaya Ward No. 72 Gram
Panchayat Lohwan Block Raaya Tehsil
Mahawan District Mathura. It is useful
to refer to the pleadings of paragraphs 2
and 3 of the writ petition which are as
follows:

"2. That by means of the aforesaid
writ
petition,
the
petitioner
is
challenging
the
election
of
the
respondent no.8 as Member Kshettra
Panchayat
Raya Ward No. 72 Gram
2 All] Khem Singh Pachhara V. State of U.P. and others
551
Panchayat Lohwan Block Raaya Tehsil
Mahawan District Mathura, the same
being in violation of the directives issued
by the
State
Election
Commission
U.P. Lucknow as contained in the Order
dated 28.06.2010. For kind perusal of
this Hon'ble Court, a true of the Order
dated 28.06.2010 passed by the State
Election Commission, U.P. is bein filed
and marked as Annexure-1 to this writ
petition.

3. That It is relevant to mention here
that the petitioner is the social worker
and is the resident of same Block e.g.
Block Raaya Tehsil Maant, District
Mathura and he was not the contesting
candidate of Member Kshettra Panchayat
Raya Ward No. 72 Gram Panchayat
Lohwan Block Raaya Tehsil Mahawan
District
Mathura,
upon
which
the
respondent no.8 has been elected in
violation of directives issued by the State
Election Commission, U.P."

13. The first question which is to be
considered is as to whether this writ
petition is barred by provisions of Article
243 ZG of the Constitution of India as
contended by the learned counsel for the
respondents.

14. From the pleadings of the
petitioner as noticed above, it is clear that
the challenge in this writ petition is
essentially the challenge to the election of
the respondent no.8. The election of
Member Kshettra Panchayat Raya Ward
No. 72 Gram Panchayat Lohwan Block
Raaya Tehsil Mahawan District Mathura
was held in accordance with the Act,
1961 and according to the Rules framed
under the said provision namely:U.P.
Kshettra
Panchayat
(Election
of
Pramukhs
and
Up-Pramukhs
and
Settlement of Election Disputes) Rules,
1994 (hereinafter referred to as the 1994,
Rules), the election can be challenged by
filing election petition. As pleaded by the
respondent
no.8,
that
two
election
petitions challenging the election have
already been filed in accordance with the
relevant
rules
which
are
pending
consideration, whether election to an
office of Kshettra 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.

15. The Apex Court in Jyoti Basu
Vs. Debi Ghosal, 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
552 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
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 self-contained code within
which must be found any rights claimed
in relation to an election or an election
dispute. ........."

16. Thus, the election of a Member
of Kshettra Panchayat has to be
challenged in accordance with the
statutory Rules, 1994 as quoted above.

17.

Article
243ZG
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."

18. The judgment of the Apex
Court relied on by the counsel for the
respondents in Kurapati Maria Das
(supra) fully supports the contention of
the learned counsel for the respondents.

19. In Kurapati Maria Das
(supra) a writ petition was filed under
Article
226
of
the
Constitution
challenging the election of appellant as a
Councilor. The ground of challenge was
that the appellant contested the election
as a Scheduled Caste Candidate "Mala"
whereas he did not belong to scheduled
caste and had wrongly been elected as
scheduled caste candidate. The learned
single judge allowed the writ petition
holding that the appellant was not
entitled to contest the election as
scheduled caste category candidate. The
writ petition was allowed and the Special
Appeal filed before the Division Bench
was also dismissed. The appellant
thereafter filed Special Leave Petition
(C) No.15144 of 2007, in the Apex Court
which was heard and decided.

20. In the aforesaid case, the
question as to whether the election was
barred under Article 243ZG (b) of the
Constitution of India was also raised and
gone into by the Apex Court. In the
aforesaid case, the Apex Court judgment
in
K.
Venkatachalam
Vs.
A.
Swamickan & Anr, 1999 (4) SCC 526,
2 All] Khem Singh Pachhara V. State of U.P. and others
553
was also noted and distinguished. The
Apex Court laid down following in
paragraphs 27,29,31 and 34 which 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 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 said
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 the
appellant and hence the bar under Article
243 ZG is attracted. The appeal was
allowed and the judgement of the High
Court was set-aside. The above judgment
of the Apex Court applies in the facts of
the present case and in view of the law
laid down by the Apex Court in Kurapati
554 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Maria Das case (supra), the writ petition
cannot be entertained. The Division
Bench judgement relied on by the
learned counsel for the petitioner in the
case of Srimati Sarita Devi (supra) does
not help the petitioner in the present
case. The said judgment is an authority
that
an
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 Shiksha 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 that election of an elected member
of Kshettra Panchayat can be challenged
by filing a writ of quo warranto.

22. In view of the foregoing
discussion, we are satisfied that the
petitioner cannot be allowed to challenge
the election of respondent no.8, by
means of this writ petition under Article
226 of the Constitution of India.

23. The writ petition has no merit
and is dismissed.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.05.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Service Single no. - 5086 of 2005

Pradeep Kumar

 ...Petitioner
Versus
State
of
U.P.
Thru
Secy.
Basic
Education,Civil Sectt. and 2 others

 ...Respondents

Counsel for the Petitioner:
Sri Alok Mishra

Counsel for the Respondents:
C.S.C.
Sri Ghaus Beg

Constitution
of
India,
Article
226Compassionate
Appointment-after
3
years of death-widow for the first time
applied with stipulation that she is
unable to work hence her minor son be
given appointment-son of the deceased
after completing graduation applied for
compassionate appointment-neither the
widow nor the son stated about financial
crisis-rejection on ground of delay-heldfrom
own
showing
no
financial
suppressing
need
establishedcompassionate
appointment
not
an
alternative
nor
reservation
for
appointment-not
entitled
for
appointment.

Held: Para 22 and 32

In the case in hand, after the death of
deceased employee on 18th July, 1993,
his wife took three years in informing
D.B.E.O. that she is not capable of
service and her two children are minor.
She did not refer to any factum of
suffering any hardship etc.. On the
contrary, she mentions only this much
that when her children become major,
they may be allowed to serve the