# Smt. Husna Bano v. State Of U.P. & Ors - **Citation:** (2016) 8 ILRA 1184 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-08-03 - **Bench:** Amreshwar Pratap Sahi, Dr. Vijay Laxmi - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-husna-bano-v-state-of-u-p-ors-44157 - **Pages:** 6 ## Headnote C.S.C., Aprajita Bansal Held - Paragraph 1: Challenge to the Electoral List The petitioner, an eligible elector, challenged the upcoming bye-election for the office of Chairman, Nagar Panchayat Kichhauchha, Ambedkar Nagar, scheduled for July 31, 2016. The petitioner argued that holding the election based on the 2012 Electoral List (derived from the 2001 Census) instead of a new list based on the 2011 Census violated Article 243-P (g) of the Constitution of India. Paragraph 2: Plea of Vitiated Election Process The petitioner further contended that a valid bye-election cannot be held in the absence of an updated census-based voter list. Relying on established judicial precedent, the petitioner asserted that the failure to update the list entirely vitiated the ongoing election process. Paragraph 3-4: Argument on Tenure and Legislative Provisions The petitioner also alleged a violation of Sections 13-H and 13-I of the U.P. Municipalities Act, 1916, arguing that a casual vacancy cannot be filled if the remaining term of office is less than one year. Consequently, the petitioner proposed that the vacancy be left unfilled until the general local body elections of 2017, for which a voter list revision was already underway. Paragraph 5: Response by the State Election Commission Ms. Aparajita Bansal, representing the State Election Commission, opposed the petition by stating that if the petitioner had newly come of age, she could have applied to add her name under the existing 1994 Rules. The Commission questioned why the petitioner waited since 2013-when the previous Chairman's election was declared invalid-to seek corrections, arguing that approaching the Court at the literal eve of the election should not be entertained under Article 226. Paragraph 6-7: Commission and State Arguments on Section 44-A The Commission and the Standing Counsel further argued that the petitioner's reliance on Sections 13-H and 13-I was completely misplaced because Section 13-H(2) was deleted long ago. They contended that Section 8 All. Smt. Husna Bano Vs State Of U.P. & Ors. 1185 44-A, introduced in 1994, explicitly commands the Commission to hold a President's/Chairman's bye-election within three months of a vacancy, acting as a mandatory special exception to the general rules governing ordinary members. Paragraph 8: Submission on Lack of Legal Impediments The respondents concluded that there was no legal impediment to holding the election for the office, which had been vacant since 2013 due to a successful election petition. They clarified that the State Election Commission can only act once notified of the vacancy by the State Government, meaning there was no administrative delay, and requested the outright dismissal of the writ. Paragraph 9: Court's Findings on the Voter List Revision Upon reviewing the arguments, the High Court found that a valid voter list did exist and rejected the petitioner's claim. The Court ruled that because this was a casual vacancy bye-election rather than a general election, the state was not obligated to conduct a full electoral roll revision. Affected individuals had ample opportunity since 2013 to manually update their names under the 1994 Rules, and structural revisions naturally align with impending general elections. Paragraph 10-12: Statutory Interpretation of Sections 13-H and 13-I The Court then analyzed the text of Sections 13-H and 13-I regarding casual vacancies. It noted that Section 13-I states a vacancy "may" be left unfilled if the remaining ordinary tenure is less than a year, but emphasized that the word "may" cannot be interpreted as a mandatory "shall." Paragraph 13-14: Primacy of Section 44-A and Final Dismissal , the Court held that while the term "Member" generally includes office bearers, Section 44-A is a special provision specifically tailored for the bye-election of a President/Chairman. This special law dictates that a presidential casual vacancy mus ## Text 1184 INDIAN LAW REPORTS ALLAHABAD SERIES (2016) 8 ILRA 1184 ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 03.08.2016 BEFORE THE HON'BLE AMRESHWAR PRATAP SAHI, J. THE HON'BLE DR. VIJAY LAXMI, J. Misc. Bench No.- 17299 Of 2016 Smt. Husna Bano ...Petitioner Versus State Of U.P. & Ors. ...Respondents Counsel for the Petitioner: Shri Mahendra Pratap Singh Counsel for the Respondents: C.S.C., Aprajita Bansal Held - Paragraph 1: Challenge to the Electoral List The petitioner, an eligible elector, challenged the upcoming bye-election for the office of Chairman, Nagar Panchayat Kichhauchha, Ambedkar Nagar, scheduled for July 31, 2016. The petitioner argued that holding the election based on the 2012 Electoral List (derived from the 2001 Census) instead of a new list based on the 2011 Census violated Article 243-P (g) of the Constitution of India. Paragraph 2: Plea of Vitiated Election Process The petitioner further contended that a valid bye-election cannot be held in the absence of an updated census-based voter list. Relying on established judicial precedent, the petitioner asserted that the failure to update the list entirely vitiated the ongoing election process. Paragraph 3-4: Argument on Tenure and Legislative Provisions The petitioner also alleged a violation of Sections 13-H and 13-I of the U.P. Municipalities Act, 1916, arguing that a casual vacancy cannot be filled if the remaining term of office is less than one year. Consequently, the petitioner proposed that the vacancy be left unfilled until the general local body elections of 2017, for which a voter list revision was already underway. Paragraph 5: Response by the State Election Commission Ms. Aparajita Bansal, representing the State Election Commission, opposed the petition by stating that if the petitioner had newly come of age, she could have applied to add her name under the existing 1994 Rules. The Commission questioned why the petitioner waited since 2013-when the previous Chairman's election was declared invalid-to seek corrections, arguing that approaching the Court at the literal eve of the election should not be entertained under Article 226. Paragraph 6-7: Commission and State Arguments on Section 44-A The Commission and the Standing Counsel further argued that the petitioner's reliance on Sections 13-H and 13-I was completely misplaced because Section 13-H(2) was deleted long ago. They contended that Section 8 All. Smt. Husna Bano Vs State Of U.P. & Ors. 1185 44-A, introduced in 1994, explicitly commands the Commission to hold a President's/Chairman's bye-election within three months of a vacancy, acting as a mandatory special exception to the general rules governing ordinary members. Paragraph 8: Submission on Lack of Legal Impediments The respondents concluded that there was no legal impediment to holding the election for the office, which had been vacant since 2013 due to a successful election petition. They clarified that the State Election Commission can only act once notified of the vacancy by the State Government, meaning there was no administrative delay, and requested the outright dismissal of the writ. Paragraph 9: Court's Findings on the Voter List Revision Upon reviewing the arguments, the High Court found that a valid voter list did exist and rejected the petitioner's claim. The Court ruled that because this was a casual vacancy bye-election rather than a general election, the state was not obligated to conduct a full electoral roll revision. Affected individuals had ample opportunity since 2013 to manually update their names under the 1994 Rules, and structural revisions naturally align with impending general elections. Paragraph 10-12: Statutory Interpretation of Sections 13-H and 13-I The Court then analyzed the text of Sections 13-H and 13-I regarding casual vacancies. It noted that Section 13-I states a vacancy "may" be left unfilled if the remaining ordinary tenure is less than a year, but emphasized that the word "may" cannot be interpreted as a mandatory "shall." Paragraph 13-14: Primacy of Section 44-A and Final Dismissal , the Court held that while the term "Member" generally includes office bearers, Section 44-A is a special provision specifically tailored for the bye-election of a President/Chairman. This special law dictates that a presidential casual vacancy must be filled as soon as possible, completely excluding it from the timeline restrictions applied to standard members under Section 13-I. Finding no merit on either ground, the High Court refused to interfere with the election notification and dismissed the writ petition. List of Citations: Sandeep @ Sandeep Mehrotra and another v. State of U.P. and others, [2012 (30) LCD 222] (Delivered by Hon'ble Amreshwar Pratap Sahi, J. & Hon'ble Dr. Vijay Laxmi, J.) 1. The petitioner claiming herself to be an eligible Elector is aggrieved by the holding of the bye-election to the office of Chairman, Nagar Panchayat Kichhauchha, district Ambedkar Nagar to be held on 31.7.2016 on the ground that the said elections are being held on the basis of the Electoral List of the year 2012 that was prepared on the basis of Census of 2001, whereas the new Electoral List should be prepared on the basis of Census of 2011 and then only a valid Electoral List would exist for the purpose of holding of the election. He therefore submits that this violates Article 243-P (g) of the Constitution of India. 1186 INDIAN LAW REPORTS ALLAHABAD SERIES 2. His further contention is that in the absence of any such list, a bye-election cannot be held and in view of the judgment in the case of Sandeep @ Sandeep Mehrotra and another v. State of U.P. and others [2012 (30) LCD 222], the entire election process is vitiated. 3. He then contends that the provisions of Sections 13-H and 13-I of the U.P. Municipalities Act, 1916 are being violated as this is a bye-election which cannot be held as the casual vacancy would give a term of less than one year and hence, the vacancy may be left unfilled. 4. Thus, either way, the initiation of the elections is vitiated and therefore, the post of Chairman should be filled-up in the forthcoming election of 2017 for which the revision of Electoral Roll is already going on and is likely to be completed in the month of September, 2016 whereafter the elections of the office of Chairman can be held alongwith all of the elections of the local bodies scheduled upon expiry of the term. For this, he has invited the attention of the Court to the timetable, which fixes the finalization of the Electoral College by 10.9.2016, a copy whereof is Annexure - 3 to the writ petition. 5. Opposing the petition, Ms.Aparajita Bansal, learned Counsel for the State Election Commission has urged that the argument of the petitioner of violation of any rights does not arise, inasmuch as if the petitioner had become of age as an Elector as alleged by her, then she could have got the Electoral List corrected under the existing rules by moving an application before the Electoral Registration Officer. According to the learned Counsel for the Commission, it is not understood as to why the petitioner or any other aggrieved person waited for the same since 2013 when the election of the then Chairman was declared as invalid in an Election Petition. It is urged that since 2013 till now, there was ample time for the petitioner to seek correction in the Electoral Roll before the Electoral Registration Officer under the relevant rules of 1994. The filing of the petition on the eve of the holding of the bye-election therefore cannot be a ground to question the correctness of the election process which has already been notified and it should not be interfered at this stage under Article 226 of the Constitution of India. 6. She also contends that the argument on the strength of Sections 13-H and 13-I of the 1916 Act is also misplaced as the petitioner's Counsel has totally ignored the impact of Section 44A thereof. The Election Commission is duty bound to get the election held within three months of its vacancy. It is further submitted that Section 13-H (2) stood deleted long back. 7. Learned Standing Counsel submits that with the introduction of Section 44-A by U.P. Act No.12 of 1994, the bye-election of the Chairman has to be held. This has been carved out as an exception to Section 13-H which only talks of a Member whereas for the office of President there is a specific provision under Section 44-A. 8. In the aforesaid background, Ms. Aparajita Bansal and learned Standing Counsel both contend that there is no legal impediment in the holding of the election for the causal vacancy of the office of a Chairman which is vacant since 2013 on account of the setting aside of the election of the elected Chairman. The State Election Commission can only proceed when such information is 8 All. Smt. Husna Bano Vs State Of U.P. & Ors. 1187 given to it by the State Government for filling up of the vacancy and therefore, there is no delay on the part of the Election Commission in proceeding to get the bye-election held. It is therefore submitted that the writ petition is devoid of merit and deserves to be dismissed. 9. We have considered the rival contentions and we find that the revision of the Electoral Roll has already commenced on account of the general election of local municipalities that are to be held in 2017. If any individual was affected by the non-inclusion of his/her name, the remedy is provided. During the intervening period since 2013, the 1994 Rules were in existence under which a person who had come of age could have always got the Electoral Roll supplemented by getting his/her name added in the event he/she intended to exercise the right of franchise. The contention of the learned Counsel for the petitioner that it is the obligation of the State to revise the Electoral Roll has not been raised in the context of the General Election but of a bye-election and of a casual vacancy. In such a situation, the proceedings initiated on the strength of the Electoral College already existing cannot be vitiated as the revision of Electoral Rolls ordinarily takes place with the impending General Election. The State is therefore discharging its obligations and had the petitioner or any other individual approached the Electoral Registration Officer, the State would have discharged its obligation. In such a situation, the holding of the bye-election on the basis of the existing Electoral List cannot be said to be vitiated on that count. The argument of the learned Counsel for the petitioner that bye-elections are going to be held on the basis of no Voter List is therefore misplaced and is accordingly rejected. The Voter List exists and the bye-elections are being held on a casual vacancy having arisen. 10. Coming to the next argument, it is evident that Sections 13-H and 13-I indicate the filling up of the casual vacancy of Members and a Member would also include the office bearer. Sections 13-H and 13-I are extracted hereunder:- "13-H Bye-elections -(1) Subject to the provisions of sub-section (2) of Section 13I, when the seat of a member, elected to a Municipality becomes vacant or is declared vacant or his election is declared void, the State Election Commission shall in consultation with the State Government by a notification in the Official Gazette, call upon the ward concerned to elect a person for the purpose of filing the vacancy caused before such date as may be specified in the notification and the provisions of this Act and of the Rules and Orders made thereunder, shall apply, as far as may be, in relation to the election of member to fill such vacancy. (2) If the vacancy so caused be a vacancy in a seat reserved in any such ward for the Scheduled Castes, the Scheduled Tribes, the Backward Classes or the women the notification issued under sub-section (1) shall specify that the person to fill that seat shall belong to the Scheduled Castes the Scheduled Tribes, the Backward Classes or the women, as the case may be." "13-I Certain casual vacancies not to be filled - Where a vacancy occurs on a Municipality by reason of death, resignation, removal or avoidance of an election of the elected member and the term of office of that member would, in the ordinary course of events, have determined within one year of the occurrence of the vacancy. Such vacancy may be left unfilled." 1188 INDIAN LAW REPORTS ALLAHABAD SERIES 11. The words used in Section 13-I are that if the tenure of the office of a Member on a casual vacancy is less than a year, then the vacancy may not be filled. The word 'may' cannot be read as 'shall' in the context it has been used. However, even attaching the ordinary meaning to the words used in the aforesaid two Sections, it is correct that the word 'Member' would also include an office bearer, but for the purpose of bye-elections of a President, the provisions of Section 44-A would directly come into play, which is extracted hereunder:- "44-A Bye-election of President - If a casual vacancy occurs in the office of the President owning to death or resignation or any other cause, the President shall be elected as soon as may be thereafter, but not later than three months from the date of occurrence of the said vacancy, in the manner provided in Section 43." 12. This special provision therefore excludes the status of a Member as understood in the context of his tenure under Section 38 of the U.P. Municipalities Act, 1916. A perusal of Section 44-A would therefore clear any doubt that it is a special provision that has been made in relation to the office of Chairperson, namely, the President of the Municipality. Sub-Section (3) of Section 43 applies to the provisions of the Act and Rules mutatis mutandis in relation to the election of a President, but at the same time, the provision of Section 44-A exclusively defines the bye-election of a President and therefore, the same would not be governed by the provisions of bye-elections of the Members under Section 13-I. 13. Thus, on both counts, we do not find any reason to interfere with the notification of the bye-election of the office of President of the Municipality at the instance of the petitioner. The writ petition lacks merit and is accordingly rejected. ---------- 8 All. Smt. Kirtan Kokila Baranwal & Ors. Vs State Of U.P. & Ors. 1189 (2016) 8 ILRA 1189 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 03.08.2016 BEFORE THE HON'BLE RAMESH SINHA, J. THE HON'BLE PRABHAT CHANDRA TRIPATHI, J. Criminal Misc. Writ Petition No.- 17614 Of 2016 Smt. Kirtan Kokila Baranwal & Ors. ...Petitioners Versus State Of U.P. & Ors. ...Respondents Counsel for the Petitioners: Shri Anand Prakash Paul, Shri Brij Bhushan Paul, Shri Vishal Talwar Counsel for the Respondents: G.A. Held - Paragraph 1-2: Parties and Reliefs Sought The High Court heard arguments from the counsels representing the school management (petitioners), the informant (respondent), and the State. The petitioners sought a writ of certiorari to quash the criminal proceedings and the First Information Report (FIR) under Sections 109, 304, and 336 of the Indian Penal Code (IPC) at Police Station Aurai, District Bhadohi, along with a mandamus to protect them from arrest. Paragraph 3: Arguments of the Petitioners The petitioners argued that running an educational institution is not a criminal offense and that they committed no illegal acts. Their counsel emphasized that legal judgments should not be driven by emotional reactions and relied on established judicial precedent regarding strict parameters for police arrests. Paragraph 4-5: First FIR and Account of the Accident The criminal case originated from a horrific accident on July 25, 2016. An initial FIR filed by Kamla Shankar Mishra stated that a "Tata Magic" van carrying young students to 'Tender Hearts English School' was approaching an unmanned railway crossing. Despite explicit warnings from the children and bystanders about an oncoming passenger train, the driver, Rashid Khan, angrily insisted he could beat the train, sped forward, and crashed. Three children died instantly, and two more succumbed to injuries at the hospital, while multiple others were severely injured. Paragraph 6: Second FIR Implicating School Management A subsequent detailed written complaint was filed by Aditya Narayan Ojha against the school's Manager (Smt. Kokila Baranwal), Principal (S.P. Vishwakarma), and Owner (Surendra Baranwal). The FIR alleged that the management, driven purely by commercial profit, forced excessive overloading of the transport vehicles, hired an unskilled driver on meager wages without checking his background, and ignored prior safety complaints from parents. It asserted that the management pressured the driver to make hasty trips, directly causing the fatal accident that killed 8 children in total.