# Rajendra Kumar v. State of U.P. & Ors

- **Citation:** (2019) 2 ILRA 1173
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-05
- **Case number:** Misc. Single No. 18761 of 2016
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-kumar-v-state-of-u-p-ors-44573
- **Pages:** 9

## Headnote

A. U.P. Panchayat Raj Act, 1947 -
Sections -11E, 95(1)(g), 5A & 6A-
Constitution of India - Article 243 (O) -
the case of petitioner is of disqualification
u/s.11-E - barring him from contesting the
election to the office of Gram Pradhan as- on
the
date
of
filing
nomination
he
was
functioning as an elected member of Kshetra
Panchayat-this
defect
dis-entitled
the
petitioner to contest the election and to hold
the office in question-renders the holding of
office of Gram Pradhan by the petitioner void
ab-initio.

Held : - any interference by this Court would
restore and perpetuate an illegality and would
encourage others to violate the law contained
in Section 11-E in the belief that they would
get away with it- For these reasons this Court
declines to exercise its equitable, discretionary
and extra ordinary jurisdiction under Article
226 of the Constitution of India in the facts
and circumstances of the case and does not
interfere
with
the
impugned
order, as,
substantial justice has been done in the
matter. Consequently, the petitioner shall not
be entitled to continue as Gram Pradhan of
Gram Panchayat Barauli. Interim order granted
earlier stands vacated.

Writ Petition dismissed (E-8)

List of Cases Cited: -

## Text

2 All. Rajendra Kumar Vs State of U.P. & Ors.
1173
judgment and order dated 30.08.2018
passed in SCC Revision No.04/2018
(Jainul Islaam @ Gop v. Maseehamasi
Farookhi).
----------

(2019)10ILR A 1173

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.09.2019

BEFORE

THE HON'BLE RAJAN ROY, J.

Misc. Single No. 18761 of 2016

Rajendra Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Apoorva Tewari, Sri Prakhar Misra

Counsel for the Respondents:
C.S.C., Aprajita Bansal, Sri Prashant
Kumar

A. U.P. Panchayat Raj Act, 1947 -
Sections -11E, 95(1)(g), 5A & 6A-
Constitution of India - Article 243 (O) -
the case of petitioner is of disqualification
u/s.11-E - barring him from contesting the
election to the office of Gram Pradhan as- on
the
date
of
filing
nomination
he
was
functioning as an elected member of Kshetra
Panchayat-this
defect
dis-entitled
the
petitioner to contest the election and to hold
the office in question-renders the holding of
office of Gram Pradhan by the petitioner void
ab-initio.

Held : - any interference by this Court would
restore and perpetuate an illegality and would
encourage others to violate the law contained
in Section 11-E in the belief that they would
get away with it- For these reasons this Court
declines to exercise its equitable, discretionary
and extra ordinary jurisdiction under Article
226 of the Constitution of India in the facts
and circumstances of the case and does not
interfere
with
the
impugned
order, as,
substantial justice has been done in the
matter. Consequently, the petitioner shall not
be entitled to continue as Gram Pradhan of
Gram Panchayat Barauli. Interim order granted
earlier stands vacated.

Writ Petition dismissed (E-8)

List of Cases Cited: -

1. Smt. Ram Kanti vs. District Magistrate,
Hamirpur and others (1995) 2 UPLBEC 771

2. Sunita Patel vs. State of U.P. & others 2006
(1) ALJ 417 (DB)

3. K. Venkatachalam vs. A. Swamickan and
another (1999) 4 SCC 526

4. Karnek Singh vs. Charanjit Singh (2005) 8 SCC 383

5. Godde Venkateswara Rao vs Government Of
Andhra Pradesh AIR 1996 SC 828

6. M. C. Mehta v. Union of India and others
(1999) 6 SCC 237

7. Mohd. Shwale vs. III ADJ (1988) 1 SCC 40

8. Om Prakash vs. U.P. Secondary Education
Service Commission Allenganj Allahabad and
others (1990) 2 UPLBEC 983

9. State of Maharashtra and others vs. Prabhu
(1994) 2 SCC 481

10. A.M. Allison and another vs. B.L. Sen and
others AIR 1957 SC 227

(Delivered by Hon'ble Rajan Roy, J.)

1. Heard Sri Apoorva Tewari learned
counsel for the petitioner, Ms Aparita Bansal for
the State Election Commission and Sri Anuj
Garg learned standing counsel.

2. This writ petition has been filed
under Article 226 of the Constitution of
1174 INDIAN LAW REPORTS ALLAHABAD SERIES
India challenging an order passed by the
District
Magistrate/District
Election
Officer on 30.07.2016 under Section 11-E
of the U.P. Panchat Raj Act, 1947
(hereinafter referred to as 'the Act, 1947')
wherein he has held that the petitioner
was not qualified for contesting the
election to the office of Gram Pradhan
Village Barauli, District Hardoi, as, on the
date
of
filing
nomination
he
was
functioning as an elected member of
Kshetra Panchayat Barauli. Accordingly
he has held that the office of Gram
Pradhan Barauli is deemed to be vacant
requiring a fresh process of election.

3. The facts of the case are that the
petitioner admittedly was a member of
Kshetra Panchayat Barauli and his tenure
was
till
17.03.2016.
He
filed
his
nomination for contesting election to the
office of Gram Pradhan while he was still
continuing as a member of Gram
Panchayat. On 13.12.2015 the result of
the election to the office of Gram Pradhan
was declared and he took oath of office on
19/20.12.2015. Even at the cost of
repetition it needs to be stated that it is the
admitted factual position that on both the
dates i.e. on the date of filing of
nomination and on the date of taking oath
of office of Gran Pradhan, he continued to
function as an elected member of of
Kshetra Panchayat Barauli. A complaint
was made by one Aneeta Mishra that on
account of holding office of member,
Kshetra
Panchayat,
petitioner
was
ineligible to contest the election to the
office of Gram Pradhan, therefore, the
election was bad and he should be
restrained from functioning as Gram
Pradhan. Prior to this complaint i.e. on
09.02.2016, the petitioner is stated to have
resigned from office of MEMBER,
Kshetra Panchayat. The contention of the
counsel for the petitioner is that this
resignation was not actuated by detection
of any dis-qualification but was a
voluntary act on the part of the petitioner.
Ms. Aneeta Mishra then filed a writ
petition before this Court bearing no.
12466 (MB) of 2016 seeking a writ of quo
warranto. The said writ petition was
disposed of on 30.03.2016 in the
following terms:-

"Shri Manoj Kumar Mishra,
Advocate has filed Vakalatnama on behalf
of opposite party no.6. The same is taken
on record.

This petition has been filed with
the following prayers:-

(a) To issue a writ, order or
direction in the nature of quo warranto
for removal of Sri Rajendra Kumar Son of
Sri Ram Kumar from Office of Village
Pradhan of Village Panchayat-Barauli,
Block-Kachauna, District-Hardoi.

(b) To issue a writ order or
direction in the nature of Mandamus
commanding the opposite party no.3 to
pass an order for declaration of the post
of Village Pradhan of Village PanchayatBarauli,
Block-Kachauna,
DistrictHardoi as Vacant in view of Section 11(E)
of Uttar Pradesh Panchayat Raj Act,
1947.

chequered(c) To issue a writ,
order or direction in the nature of
Mandamus commanding the opposite
party no.2 to issue a notification for
holding a fresh election for Office of
Village Pradhan of Village PanchayatBarauli,
Block-Kachauna,
District
Hardoi.

(d) To issue a writ, order or
direction in the nature of Mandamus
commanding the opposite party no.4 to
declare the proceedings followed by
decisions taken by the opposite party no.6
2 All. Rajendra Kumar Vs State of U.P. & Ors.
1175
as void since he was elected for the post
of Pradhan of Village Panchayat-Barauli,
Block-Kachauna, District-Hardoi.

(e) To issue any other order or
direction which this Hon'ble Court may
deem just and proper in the facts and
circumstances of the case.

(f) Award cost of the writ
petition in favour of the petitioner against
the opposite party, forthwith to impart
due justice.

The representation of other
person contained in Annexure-4 was
disposed of by the District Magistrate.
Though it is stated by counsel for the
petitioner that in the representation, the
petitioner has taken grounds in respect of
disqualification of opposite party no.6
from the office held by him.

Learned
counsel
for
the
petitioner further submits that it is
incumbent upon District Magistrate to
consider
and
dispose
of
the
representation and decide the issue in
accordance with law but the District
Magistrate is not paying any attention to
the representation.

In the aforesaid circumstances,
the writ petition is disposed of with
direction to the District Magistrate to
consider
and
dispose
of
the
representation preferred by the petitioner
within a period of two months."

4. The aforesaid order was passed
after hearing the parties including the
petitioner
herein,
who had put
in
appearance. The petitioner who was the
opposite party no.6 therein did not
challenge the aforesaid order of the High
Court.

5. In pursuance to the aforesaid
complaint Ms. Aneeta Mishra moved a
representation
before
the
District
Magistrate and it is this representation
which has been decided by the said
officer on 30.07.2016 which is impugned
herein.

6. It is not out of place to mention
that Ms. Aneeta Misra moved an
application for being impleaded as an
opposie party in this petition but it was
rejected on the ground that a complainant
was not a necessary party.

7. The contention of Sri Tewari learned
counsel for the petitioner is firstly that the
District Magistrate had no jurisdiction to pass
such an order even in his capacity as District
Election Officer or for that matter in
pursuance to the direction issued by the High
Court, as a District Election Officer becomes
functus-officio once the election result is
declared and in this regard, he has relied
upon a Division Bench judgment reported in
(1995) 2 UPLBEC 771 (Smt. Ram Kanti vs.
District Magistrate, Hamirpur and others)
and
connected
matters,
wherein,
the
aforesaid preposition of law has been laid
down. The same principle has been reiterated
in a subsequent decision reported in 2006 (1)
ALJ 417 (DB) ( Sunita Patel vs. State of
U.P. & others) albeit in the context of
Kheshtra Panchayat election.

8. Learned counsel for the petitioner
further contends that if the legislature has
not conferred jurisdiction on a particular
authority in respect of a particular subject
then such jurisdiction cannot be conferred
by consent or even by the order of the
Courts and the Court cannot issue
direction to an incompetent authority to
decide a dispute is well settled.

9. Contention of the learned counsel
is that once the petitioner was elected as
Gram Pradhan, in view of the provisions
1176 INDIAN LAW REPORTS ALLAHABAD SERIES
contained in Article 243(o) of the
Constitution
to
the
effect
"notwithstanding
anything
in
the
constitution, no election to any Panchayat
shall be called in question except by
Election Petition presented to such
authority in such manner as is provided
for
under
any
law
made
by
the
legislation", as, the challenge in essence
was to the election of the petitioner as
Gram Pradhan, the only remedy available
was in terms of an Election Petition under
Section 12-C(1) of the Act, 1947 but no
Election Petition was filed and the period
of limitation prescribed for the same
having expired, the writ petition for
issuance of quo warranto filed by Aneeta
Mishra also having been disposed of, in
the
absence
of
any
challenge
to
petitioner's election by filing an Election
Petition, there was no other remedy
available to any aggrieved person, nor
was there any provision in the Act, 1947
or in the Constitution of India under
which any authority including the District
Magistrate could divest the petitioner of
the office of Gram Pradhan in the manner
it had been done.

10. This apart, Sri Apoorva Tewari
learned
counsel
for
the
petitioner
contended that reference to Section 11E(2) of the Act, 1947 in the impugned
order is misconceived for the reason that
the said provision is attracted only in an
eventuality where after a person has been
elected as Gram Pradhan, he, is elected
subsequently to another office, which is
not the case here. Furthermore, he says
that in this view of the matter there is no
question of 'deemed vacancy' of the office
held by the petitioner.

11. According to him, even if an
election petition had been filed the
defence would be open to the petitioner
that Section 12-C does not apply to the
facts of the present case as it does not fall
in any of the eventualities mentioned
therein, including 'voidance' of election
and that even such 'viodance' is required
to be declared by the Courts, even if, in
collateral proceedings, and the District
Magistrate could not have done so. He
also submitted that requirement of the
Election being 'materially affected' would
still not be satisfied. In this context he
also invited the attention of the Court to
Rule 4(3)(a) of the U.P. Pachayat Raj
(Settlement of Election) Disputes Rules,
1997 to contend that casual vacancy can
be declared by the Sub Divisional Officer
i.e. the Prescribed authority that too only
in a proceeding for setting aside the
election, therefore, the District Magistrate
had no power to do so and has exceeded
his jurisdiction.

12. Ms. Aparajita Bansal learned
counsel
appearing
for
Election
Commission has invited the attention of
the Court to sub Section 3 of Section 11E, however sub section 3 relates to the
first election under the Act, 1947,
therefore, the same does not apply in this
case as it was not the first election under
the Act. She also submitted that so far as
Section 11-D of the Act, 1947 is
concerned the Rules have been framed for
vacancy of the office but in respect of
Section 11-E no such Rules have been
framed,
therefore,
once
the
disqualification is detected the office
becomes automatically vacant and all that
the District Magistrate has done is to
declare it to be so. She also submitted that
the remedy of an Election Petition under
Section 12-C(1) was not available in this
case as in fact there was no challenge to
the election, what was pointed out by the
2 All. Rajendra Kumar Vs State of U.P. & Ors.
1177
complainant was the ineligibility of the
petitioner to hold two offices at the same
time.

13. Sri Anuj Garg learned standing
counsel submitted arguments on the same
line as Ms Aparajita Bansal.

14. As per Section 11-E(1) of the
Act, 1947 a person shall be disqualified
for being elected to or holding the office
of Pradhan or member of Gram Panchayat
or a Panchayat or a Nyaya Panchayat, if
he is (a) a member of parliament or of the
State
Legislature;
or
(b)
member,
Pramukh or Up-pramukh of a Kshettra
Panchayat; or (c) member, Adhyaksha or
Upadhyaksha of a Zila Panchayat; or
Adhyaksha or Upadhyaksha of any cooperative society.

15. As regards the first contention of
learned counsel for the petitioner, the
legal position is well settled that once the
result of the election has been declared
the District Magistrate/District Election
Officer becomes functus officio. The
District Magistrate thereafter has power to
take a decision for removal of Pradhan
under Section 95(1)(g) of the Act, 1947.
The Court does not find any ground
mentioned in Section 95(1)(g) or under
Section 5-A of the Act, 1947 as being
available in this case for availing the
remedy under Section 95(1)(g) of the Act,
1947 and Section 6-A of the Act, 1947.
The disqualification mentioned in Section
11-E is not mentioned in Section 5-A nor
as a ground for removal under Section
95(1)(g) of the Act, 1947. An Election
petition assuming it would have been
maintainable on the ground that the result
of the election had been materially
affected by improper acceptance or
rejection of petitioner's nomination or by
gross
failure
to
comply
with
the
provisions of the Act or the Rules framed
thereunder, as, while holding the office of
member of Kshetra Panchayat he could
not have filed the nomination paper for
Election to the office of Gram Pradhan,
the fact of the matter is that no Election
petition was filed by any aggrieved person
instead a writ of quo warranto was filed
which was disposed of as already stated.
Now the question to be considered is
whether merely because an Election
Petition was not filed against the
petitioner,
who
admittedly
was
disqualified from being elected or holding
the office of Gram Pradhan in view of the
provisions contained in Section 11-E(1)
of the Act, 1947, should he be allowed to
continue in office because the District
Magistrate who has passed the impugned
order did not have jurisdiction to do so
and this Court in exercise of its extra
ordinary jurisdiction under Article 226 of
the Constitution should be a mutespectator to a void and illegal act and
should dismiss this petition on this ground
thereby sustaining and perpetuating an
apparent illegality.? While it is true that
so far as elections are are concerned, in
view of the provisions contained in
Article 243(O), the remedy is by way of
an Election Petition but there is a decision
to the effect of the Supreme Court
reported in (1999) 4 SCC 526 (K.
Venkatachalam vs. A. Swamickan and
another) wherein their Lordship at the
Supreme Court have said that Article 243
(O) of the Constitution by itself may not
per-se bar judicial review which is the
basic structure of the Constitution but
ordinarily such jurisdiction would not be
exercised, there may be some cases where
a writ petition would be entertained.
Reference may also be made to another
decision reported in (2005) 8 SCC 383
1178 INDIAN LAW REPORTS ALLAHABAD SERIES
(Karnek Singh vs. Charanjit Singh)
wherein their Lordships of the Supreme
Court held as under:-

"29. In view of the judgment of
this Court in the case of Election
Commission of India v. Saka Vankata
Rao it may be that action under Article
192
could
not
be
taken
as
the
disqualification
which
the
appellant
incurred was prior to his election.
Various decisions of this Court, which
have been referred to by the appellant
that jurisdiction of the High Court under
Article 226 is barred challenging the
election of a returned candidate and
which we have noted above, do not
appear to apply to the case of the
appellant now before us. Article 226 of
the Constitution is couched in widest
possible term and unless there is clear
bar to jurisdiction of the High Court its
powers
under
Article
226
of
the
Constitution can be exercised when there
is any act which is against any provision
of law or violative of constitutional
provisions and when recourse cannot be
had to the provisions of the Act for the
appropriate relief. In circumstances like
the present one bar of Article 329(b) will
not come into play when case falls under
Articles 191 and 193 and whole of the
election process is over. Consider the
case where the person elected is not a
citizen of India. Would the Court allow a
foreign citizen to sit and vote in the
Legislative Assembly and not exercise
jurisdiction under Article 226 of the
Constitution?

30. We are, therefore, of the
view that the High Court rightly exercised
its jurisdiction in entertaining the writ
petition
under
Article
226
of
the
Constitution
and
declared
that
the
appellant was not entitled to sit in Tamil
Nadu
Legislative
Assembly
with
consequent restraint order on him from
functioning
as
a
member
of
the
Legislative Assembly. The net effect is
that the appellant ceases to be a member
of the Tamil Nadu Legislative Assembly.
Period of the Legislative Assembly is long
since over. Otherwise we would have
directed respondent No. 2, who is
Secretary to Tamil Nadu Legislative
Assembly,
to
intimate
to
Election
Commission
that
Lalgudi
Assembly
constituency seat has fallen vacant and
for the Election Commission to take
necessary steps to hold fresh election
from
that
Assembly
Constituency.
Normally in a case like this Election
Commission should invariably be made a
party.

31. When leave to appeal was
granted to the appellant by this Court
operation of the impugned judgment was
suspended. Respondent No. 2 shall
intimate to the State Government as to for
how many days the appellant sat as a
member of the Legislative Assembly and it
would be for the State Government to
recover penalty from the appellant in
terms of Article 193 of the Constitution.

32. This appeal is dismissed
with costs."

16. In the present case the one fact
which makes a difference is the admitted
case of the petitioner himself about his
disqualification under Section 11-E of the
Act. i.e. the admission of the fact that on
the date of filing nomination for election
to the office of Gram Pradhan and taking
oath he was a member of Kshetra
Panchayat then under Section 11-E he
was disqualified not only from being
elected but also from holding the office of
Pradhan as is evident from the language
used in the provision. Based on this
2 All. Rajendra Kumar Vs State of U.P. & Ors.
1179
indisputable factual scenario the irresistible
conclusion is that he was disqualified to
contest the election of Gram Pradhan under
Section 11-E. Furthermore, as already stated,
the Court finds that Section 11-E did not only
disqualify him from being elected but also
from holding the office of Pradhan. Even
otherwise, in view of the aforesaid admitted
factual scenario while it is true that the District
Election Office had become functus-officio
after declaration of the election result and the
District Magistrate could not have declared
the election of the petitioner to be void, this
Court finds what the District Magistrate has
done is only to reiterate the obvious based on
the provisions contained in Section 11-E in
view of the indisputable facts before him. The
consequence of it is a vacancy on the office of
Gram Pradhan. Merely because he has
referred to Section 11-E(2) can not be a
ground for interference by this Court under
Article 226 of the Constitution. A hypertechnical approach in this regard is not
warranted. Even assuming that the District
Magistrate did not have power in this regard,
if interference with his order revives an
apparent illegality this Court would decline to
do so if substantial justice has been done as is
the case here. Reference may be made to the
decision reported in AIR 1996 SC 828
(Godde Venkateswara Rao vs Government
Of Andhra Pradesh) wherein their Lordships
of the Supreme Court of India sustained the
decision of the High Court exercising its
discretion refusing to interfere with an order of
Government, which it did have power and
jurisdiction to pass, as it would have restored
an illegal order. The Supreme Court held as
under:-

"In those circumstances, was it
a case for the High Court to interfere in
its discretion and quash the order of the
Government dated April 18, 1963? If the
High Court had quashed the said order, it
would have restored an illegal order--it
would have given the Health Centre to a
village contrary to the valid resolution
passed by the Panchayat Samithi. The
High Court, therefore, in our view, rightly
refused to exercise its extra ordinary
discretionary power in the circumstances
of the case.

In the result, the appeal is
dismissed, but, in the circumstances of the
case, without costs."

17. On the same line there is another
decision of the Supreme Court reported in
(1999) 6 SCC 237 (M. C. Mehta v. Union
of India and others) wherein it was held
that the Court can refuse to exercise its
discretion of striking down an order, if
such
striking
down
will
result
in
restoration of another order passed earlier
in favour of the petitioner and against the
opposite parties in violation of principle
of natural justice or it is otherwise not in
accordance with law. A reference was
also made therein to another decision of
the Supreme Court on the same line
reported in (1988) 1 SCC 40 (Mohd.
Shwale vs. III ADJ).

18. Reference may also be made to a
Division Bench Judgment of this Court
reported in (1990) 2 UPLBEC 983 (Om
Prakash vs. U.P. Secondary Education
Service
Commission
Allenganj
Allahabad and others) wherein, this
Court declined to interfere in a decision
taken without jurisdiction, as, substantial
justice had been done in the matter.
Reference may also be made to a decision
of the Supreme Court reported in (1994) 2
SCC 481 (State of Maharashtra and
others vs. Prabhu) wherein, the Supreme
Court disapproved interference by the
High Court in exercise of its equity
jurisdiction under Article 226 of the
1180 INDIAN LAW REPORTS ALLAHABAD SERIES
Constitution where more harm is likely to
be
caused
to
a
society
by
such
interference than good as it would shake
the confidence and faith of the society in
the system and would be prone to
encouraging even the honest and sincere
to deviate from their path. It held that it
was the responsibility of the High Court
as custodian of the Constitution to
maintain the social balance by interfering
where necessary for the sake of justice
and refusing to interfere where it is
against the social interest and public
good. Their Lordships also observed as
under:-

"Even
assuming
that
the
construction placed by the High Court and
vehemently defended by the learned counsel for
respondent is correct should the High Court
have interfered with the order of Government
in exercise of its equity jurisdiction. The
distinction between writs issued as a matter of
right such as habeas corpus and those issued in
exercise of discretion such as certiorari and
mandamus are well known and explained in
countless decisions given by this Court and
English Courts. It is not necessary to recount
them. The High Court exercise control over
Government functining and ensure obedience
of rules and law by enforcing proper, fair and
just performance of duty. Where
the
Government or any authority posses an order
which is contrary to rules or law it becomes
amenable to correction by the courts in
exercise of writ jurisdiction. But one of the
principle inherent in it is that the exercise of
power should be for the sake of justice. One of
the yardstick for it is if the quashing of the
order results in greater harm to the society then
the court may restrain from exercising the
power."

19. Reference may also be made to
another decision of the Supreme Court
reported in AIR 1957 SC 227 (A.M.
Allison and another vs. B.L. Sen and
others) wherein a plea of lack of
jurisdiction was taken yet the Supreme
Court upheld the decision of the High
Court by observing that proceedings by
way of certiorari are "not of Course" (vide
Halsbury's Laws of England', Hailsham
Edition, Vol.9 paras 1480 and 1481, pp.
877-878). The High Court of Assam had
the power to refuse the writs if it was
satisfied that there was no failure of
justice and that the Supreme Court could
refused to interfere in appeals directed
against such order of the High Court
under Article 226 unless it was satisfied
that the justice of the case required it. In
the said case the Supreme Court held that
it was not satisfied that it requires
interference.

20. In the instant case any
interference by this Court would restore
and perpetuate an illegality and would
encourage others to violate the law
contained in Section 11-E in the belief
that they would get away with it.

21. Sri Tewari in a desperate effort
to protect the interest of his client
attempted to argue that the defect was
curable but on being confronted with the
provisions contained in Section 11-E, he
let go, as, the defect dis-entitled the
petitioner to contest the election in the
first place and also to hold the office in
question and was too fundamental to be
cured. It renders the holding of office of
Gram Pradhan by the petitioner void abinitio.

22. For these reasons this Court
declines
to
exercise
its
equitable,
discretionary
and
extra
ordinary
jurisdiction under Article 226 of the
2 All. Anil Mehrotra Vs Addl. Session Judge Court No. 15 Lucknow & Ors.
1181
Constitution of India in the facts and
circumstances of the case and does not
interfere with the impugned order, as,
substantial justice has been done in the
matter. Consequently the petitioner shall
not be entitled to continue as Gram
Pradhan of Gram Panchayat Barauli.
Interim order granted earlier stands
vacated.

23. This judgment shall not be
treated as an affirmation of the powers of
the District Magistrate/District Election
Officer to pass such orders, but as a
refusal by this Court to exercise its
discretionary and equity jurisdiction for
the above reasons.

24. Till elections to the office of
Gram Pradhan of Gram Panchayat Barauli
are held the District Magistrate shall make
interim arrangement in terms of Section
12-J of the Act, 1947.

25. For these reasons the writ
petition is dismissed.
----------

(2019)10ILR A 1181

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.09.2019

BEFORE

THE HON'BLE IRSHAD ALI, J.

Rent Control No. 64 of 2015

Anil Mehrotra ...Petitioner
Versus
Addl. Session Judge Court No. 15
Lucknow & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vijay Krishna
Counsel for the Respondents:
Sri H.N. Tiwari, Sri Jagdish Prasad Vaish, Sri
Nagendra Pratap Singh, Sri Shiwa Kant Tiwari

A. U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972 -
Section 21(1) A - Release application for
vacating the premises - appeal under
Section 22 - Application under Order 41
Rule 27(aa) CPC for taking copy of the sale
deed as additional evidence. (Para 3, 4 & 5)

It is well established that the additional
evidence can be placed at appellate stage; if
the trial court has refused to take additional
evidence which ought to have been admitted,
the party seeking to produce additional
evidence, establishes that notwithstanding the
exercise of due diligence, such evidence was
not within his knowledge or could not, after
the exercise of due diligence, be produced by
him at the time when the decree appealed
against was passed or the Appellate Court
requires any document to be produced or any
witness to be examined to enable it to
pronounce
judgment,
or
for
any
other
substantial cause. (Para 14)

Held:- The Additional District Judge has
committed manifest error of law in passing the
impugned order. The Additional District Judge
has failed to appreciate the ingredients under
Order 41 Rule 27 (aa) CPC and has proceeded
to allow the application in a very cursory
manner. (Para-17)

Writ petition allowed (E-7)

List of Cases Cited: -

1. Rajkali Vs St. of U.P. & ors. (2014) 1 JCLR 494

2. Kailash Chandra Vs A.D.J. Sitapur (2013) 2
ARC 797

3. Union of India Vs Ibrahim Uddin & anr.
(2012) 8 SCC 148
(Delivered by Hon'ble Irshad Ali, J.)

1) Heard Sri N.K. Seth, learned
Senior Counsel assisted by Sri Vijay