# Smt. Krishna Upadhyay v. State of U.P. and others

- **Citation:** (2011) 2 ILRA 597
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-05-02
- **Case number:** Civil Misc. Writ Petition No. 22769 of 2011
- **Bench:** Ashok Bhushan, Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-krishna-upadhyay-v-state-of-u-p-and-others-41933
- **Pages:** 9

## Headnote

Constitution
of
India,
Article
226,
243ZG-writ of Quo-warranto readwith
Uttar Pradesh Panchayat Raj (Settlement
of Election Dispute) Rules 1994-Rule 5A-Election of Gram Pradhan under ruleR-6 declared elected-Election Petition
against R-6 pending-by present Petition
question of disqualification of R-6 as
being below than 21 years age-not
eligible
to
hold
the
post-hence
continuance of R-6 on office of Gram
Pradhan amounts to usurping the post
without
having
legal
right-held
admittedly
the
same
facts
under
consideration in election Petitioner-such
question of facts and law can not be
decided by writ court-petition can not be
entertained.

Held: Para 15

In view of the foregoing discussion, it is
clear that when the challenge in the
petition is essentially the challenge to
the election of an elected candidate for
which remedy is to file an election
petition, this court normally does not
entertain a writ of quo-warranto. In the
present case, the petitioner herself has
filed Election Petition No. 2 of 2010
challenging the election of respondent
no. 6 which is pending consideration.
After filing the election petition, the
petitioner has come up by praying for a
writ of quo-warranto. The issue which
has been raised in the writ petition that
respondent no. 6 was not eligible to
contest the election is the issue in the
election petition which can very well be
gone into in the election petition and
decided. In the facts of the present case
and in view of the Division Bench
judgement in the case of Khem Singh
Pachhara (supra), we are of the view
that the present writ petition for a writ
of
quo-warranto
need
not
be
entertained.
Case law discussed:
2001 Vol. 7 SCC Pg. 231; 2010 (111) RD 467;
2010 (109) RD 432; W.P. No. 4567 of 2011
Khem Singh Pachhara vs. State of U.P. And
others; AIR 1999 SC 1723; JT 2009 Vol. SCC
287

## Text

2 All] Smt. Krishna Upadhyay V. State of U.P. and others
597
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.05.2011

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

Civil Misc. Writ Petition No. 22769 of 2011

Smt. Krishna Upadhyay
 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Jamwant Maurya

Counsel for the Respondents:
Sri S.K. Singh
C.S.C

Constitution
of
India,
Article
226,
243ZG-writ of Quo-warranto readwith
Uttar Pradesh Panchayat Raj (Settlement
of Election Dispute) Rules 1994-Rule 5A-Election of Gram Pradhan under ruleR-6 declared elected-Election Petition
against R-6 pending-by present Petition
question of disqualification of R-6 as
being below than 21 years age-not
eligible
to
hold
the
post-hence
continuance of R-6 on office of Gram
Pradhan amounts to usurping the post
without
having
legal
right-held
admittedly
the
same
facts
under
consideration in election Petitioner-such
question of facts and law can not be
decided by writ court-petition can not be
entertained.

Held: Para 15

In view of the foregoing discussion, it is
clear that when the challenge in the
petition is essentially the challenge to
the election of an elected candidate for
which remedy is to file an election
petition, this court normally does not
entertain a writ of quo-warranto. In the
present case, the petitioner herself has
filed Election Petition No. 2 of 2010
challenging the election of respondent
no. 6 which is pending consideration.
After filing the election petition, the
petitioner has come up by praying for a
writ of quo-warranto. The issue which
has been raised in the writ petition that
respondent no. 6 was not eligible to
contest the election is the issue in the
election petition which can very well be
gone into in the election petition and
decided. In the facts of the present case
and in view of the Division Bench
judgement in the case of Khem Singh
Pachhara (supra), we are of the view
that the present writ petition for a writ
of
quo-warranto
need
not
be
entertained.
Case law discussed:
2001 Vol. 7 SCC Pg. 231; 2010 (111) RD 467;
2010 (109) RD 432; W.P. No. 4567 of 2011
Khem Singh Pachhara vs. State of U.P. And
others; AIR 1999 SC 1723; JT 2009 Vol. SCC
287

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

1. Heard Sri Jamwant Maurya,
learned counsel for the petitioner and
learned Standing Counsel.

2. By this writ petition, the
petitioner has prayed for a writ in the
nature of quo-warranto commanding and
directing respondent no. 6 to vacate the
post
of
Gram
Pradhan
of
Gram
Sabha/Gram Panchayat, Hetampur, Block
Sakaldeeha, District Chandauli forthwith
and to restrain functioning of Gram
Pradhan. Further mandamus has been
sought directing the respondent no. 2 to
conduct fresh election of Gram Pradhan,
Gram Sabha/Gram Panchayat, Hetampur,
Block Sakaldeeha, District Chandauli.

3. Respondent No. 6 filed her
nomination for the Office of Pradhan and
was declared elected on 25.10.2010 and
took charge on 03.11.2010. The petitioner
598 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
had also filed her nomination and was one
of
the
contesting
candidates.
After
declaration of the result of election, the
petitioner filed Election Petition No. 2 of
2010 u/s 12C of U.P. Panchayat Raj Act,
1947
challenging
the
election
of
respondent no. 6 which election petition is
pending consideration.

4. Petitioner's case in the writ
petition is that respondent no. 6 does not
fulfill the qualification for election as
Pradhan, she being less than 21 years of
age on the date of filing nomination as
well as on the date of election. The
petitioner's case is that respondent no. 6
was not eligible to contest the election
and
she
having
not
fulfilling
the
qualification for election as Pradhan, was
not entitled to be elected.

5. Learned counsel for the petitioner
in support of the writ petition contended
that respondent no. 6 having not fulfilling
the qualification of age, i.e. 21 years, was
ineligible and hence the petitioner has
every right to pray for issue of a writ of
quo-warranto against respondent no. 6.

6. Learned counsel for the petitioner
has placed reliance on the judgement of
Hon'ble Apex Court in the case of B.R.
Kapur vs. State of Tamil Nadu and
Another reported in 2001 Vol. 7 SCC Pg.
231 was well as two judgements of
learned Single Judge of this court in the
case of Smt. Meena Devi vs. State of
U.P. and Others reported in 2010 (111)
RD 467 and in the case of Dhanai vs.
State of U.P. and Others reported in
2010 (109) RD 432.

7. Learned counsel appearing for
respondent
no.
2
Sri
S.K.
Singh
contended that this writ petition for issue
of a writ of quo-warranto is not
maintainable since the petitioner who is
virtually challenging the election of
respondent no. 6 has already filed an
election
petition
u/s
12C
of
U.P.
Panchayat Raj Act, 1947, which is
pending consideration. Reliance has been
placed by respondent no. 2 on a Division
Bench judgement of this court in W.P.
NO.
4567
of
2011
Khem
Singh
Pachhara vs. State of U.P. and Others
decided on 21.04.2011.

8. We have heard counsel for the
parties and perused the record.

9. To get elected or to dispute the
election is a statutory right which is
governed by the statutory rules. The
election on the Office of Pradhan is held
in accordance with the provisions of U.P.
Panchayat Raj Act 1947 and can be
challenged in accordance with the rules
namely Uttar Pradesh Panchayat Raj
(Settlement of Election Disputes) Rules
1994. The allegations in the writ petition
are to the effect that respondent no. 6 was
disqualified and was not entitled to
contest the election. Reference has been
made to Section 5A of U.P. Panchayat
Raj Act, 1947 which provides for
disqualification for membership.

10. The petitioner as noted above
has already challenged the election of
respondent no. 6 in Election Petition No.
2 of 2010 which is pending consideration.
After filing of the election petition, the
petitioner has now come up in this writ
petition praying for issue of a writ of quowarranto. The judgement which has been
relied by learned counsel for the petitioner
in B.R. Kapur's case (supra), specifically
paragraphs 52, 54, 78, 79, 80 and 81, was
a case in which the appointment of
2 All] Smt. Krishna Upadhyay V. State of U.P. and others
599
respondent Ms. J. Jayalalitha as the Chief
Minister of Tamil Nadu was challenged.
The
respondent
was
convicted
for
offences punishable u/s 120B of I.P.C and
under the Prevention of Corruption Act
1988 and was sentenced to undergo
rigorous imprisonment and pay fine.
Against the conviction, appeals were filed
in which the sentence of rigorous
imprisonment
was
suspended.
The
Governor
appointed
the
second
respondent as the Chief Minister which
appointment was challenged on the
ground that she was not qualified for
appointment, she being already convicted.
Hon'ble Apex Court in the said case had
held that in the facts and situation of the
said case, a writ of quo-warranto could be
issued
against
respondent
no.
2.
Following was laid down in paragraph
nos. 78 and 79 of the said case: -

78. Amongst other points, the
learned counsel for the respondents
submitted
that
the
appointment
of
Respondent No. 2 as Chief Minister by
the Governor, could not be challenged, in
view of the provisions under Article 361
of the Constitution, providing that the
Governor shall not be answerable to any
court for the exercise and performance of
the powers and duties of his office. It was
also submitted that in appointing the
Chief Minister, the Governor exercised
her discretionary powers, therefore, her
action is not justiciable. Yet another
submission is that the Governor had only
implemented the decision of the majority
party, in appointing Respondent 2 as a
Chief Minister i.e. she had only given
effect to the will of the people.

79. Insofar as it relates to Article 361
of the Constitution that the Governor shall
not be answerable to any court for
performance of duties of his office as
Governor, it may, at the very outset, be
indicated that we are considering the
prayer for issue of the writ of quo
warranto against Respondent 2, who
according to the petitioner suffers from
disqualification to hold the public office
of the Chief Minister of a State. A writ of
quo warranto is a writ which lies against
the person, who according to the relator is
not entitled to hold an office of public
nature and is only a usurper of the office.
It is the person, against whom the writ of
quo warranto is directed, who is required
to show, by what authority that person is
entitled to hold the office. The challenge
can be made on various grounds,
including on the grounds that the
possessor of the office does not fulfil the
required qualifications or suffers from any
disqualification, which debars the person
to hold such office. So as to have an idea
about the nature of action in the
proceedings for writ of quo warranto and
its original form, as it used to be, it would
be beneficial to quote from Words and
Phrases, Permanent Edn. Vol. 35-A p.
648. It reads as follows:

"The original common law writ of
quo warranto was a civil writ at the suit of
the
Crown,
and
not
a
criminal
prosecution. It was in the nature of a writ
of right by the King against one who
usurped
or
claimed
franchises
or
liabilities, to inquire by what right he
claimed them. This writ, however, fell
into disuse in England centuries ago, and
its place was supplied by an information
in the nature of a quo warranto, which in
its origin was a criminal method of
prosecution, as well as to punish the
usurper by a fine for the usurpation of the
franchise, as to oust him or seize it for the
Crown. Long before our revolution,
600 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
however, it lost its character as a criminal
proceeding in everything except form, and
was franchise, or ousting the wrongful
possessor, the fine being normal only; and
such, without any special legislation to
that effect, has always been its character
in many of the States of the Union, and it
is therefore a civil remedy only. Ames v.
State of Kansas, People v. Dashaway
Assn.

11. There cannot be any dispute to
the proposition as laid down by the
Hon'ble Apex Court in the aforesaid case.
In an appropriate case, a person usurping
the public office can be asked to show his
authority by issuing a writ of quowarranto. The question to be considered
in the present case is as to whether in the
facts of the present case, the present writ
petition for issuing a writ of quo-warranto
can be entertained. The judgement in the
case of Smt. Meena Devi (supra) relied by
the petitioner was a case where the
respondent was elected as Pradhan as a
reserved category candidate. The caste
certificate which was issued to the
petitioner
was
cancelled.
After
cancellation of the caste certificate of
Smt. Inder Bala, the elected Pradhan, the
writ petitioner made a request to the
District Magistrate that Inder Bala had no
right to continue on the post of Pradhan
and her continuance is liable to be
stopped by issuing a writ of quo-warranto.
This ocurt considered the several cases.
Following was laid down in paragraph
nos. 14, 15, 16 and 18: -

14. The view has been taken that
election to the office of Pradhan can be
challenged only by way of forum
provided for to question the validity of
election is by way of election petition
under section 12-C of the Act, as provided
for
under
Article
243-O
of
the
Constitution, which has overriding effect.
There is another facet of the matter and
the said facet is that there are two stages
of disqualification of a person elected as
office bearer of Village Panchayat' (i) if it
exists at the time of filing of nomination
and continue to exist up to declaration of
his result, then such disqualification is to
be agitated by way of filing an election
petition before the Election Tribunal
under section 12-C of U.P. Panchayat Raj
Act' (ii) but if such disqualification is
earned by a person after filing of
nomination paper and declaration of
results,
then
State
Legislation
has
authority to make law disqualifying such
an incumbent as a member of Panchayat.

15. Hon'ble Apex Court in the case
of Kurupati Maria Das v. M/s. Dr.
Ambedkar Sewa Sansthan and Others,
after taking into account the judgement of
Hon'ble Apex Court in the case of K.
Venkatchalam v. A. Swamickan, Jaspal
Singh Arora v. State of M.P., Gurdeep
Singh Dhillo v. Satpal and Others, has
taken the view that election cannot be
under challenge to a writ of quo-warranto,
but subsequent continuance of such a
person in his capacity as a person
belonging to that particular caste can
always be subject matter of challenge and
writ of quo-warranto would lie, in
paragraph 22 of judgement word of
caution is there, that in the garb of writ
petition of quo-warranto, question of caste
and question of election which are so
inextricably mixed, cannot be permitted,
as in pith and substance, it is nothing but
questioning the validity of election. High
Court itself cannot take up the issue of
deciding the question of caste. The law on
the subject, thus, stands clarified that writ
of quo-warranto would lie in a case
2 All] Smt. Krishna Upadhyay V. State of U.P. and others
601
wherein subsequent continuance of such a
person in his capacity as a person
belonging to that particular caste is an
issue and the same can always be subject
matter of challenge. In paragraph 27
wherein inaction was complained of, on
behalf of authorities enjoined upon to
decide the issue of caste under section 5
of 1993 Act has been dealt with inclusive
of
the
issue
of
consequence
of
cancellation certificate as follows: -

" That was done. If that application
had been decided upon and concerned
authority had found that appellant's caste
certificate itself was false and fraudulent
and he genuinely did not belong to
Scheduled Caste, then that itself could
have been enough for the appellant to
loose the post that he was elected to. In
our opinion, it is necessary to get
examined the Caste certificates of all the
elected
persons
from
reserved
constituencies within a time frame to
avoid such controversies."

16. In the aforementioned judgement,
a thin line of distinction has been drawn
for challenging the election which was
open till declaration of result, and qua the
disqualification occurred subsequent to
the same, i.e. after filing nomination
papers and declaration of result, then
certainly, situation cannot be left at the
prerogative of the authority and in
appropriate matters Court can always
issue writ of quo-warranto, when it is
established that the person who holds the
post of an independent substantive public
office, by what rights he holds the office,
so that his title is duly determined, and in
case, it is found that holder of the office
has no title, he should be ousted from the
office by a judicial order. Procedure of
quo-warranto
comes
under
judicial
remedy, but control of executive from
making appointment to public office
cannot be taken away. It protects such
persons from being deprived of the public
office, who has right. A person can avail
the remedy of writ of quo-warranto by
satisfying the Court that the office in
question is public office and the same is
held by usurper without legal authority,
and on inquiry as to whether the
appointment of the said usurper had been
made in accordance with law or not, the
authority of quo-warranto is thus judicial
remedy to undo a wrong when public
office is involved and the incumbent who
is holding the office, same is without any
authority of law.

18. The larger question involved in
the present case is that the candidate, Smt.
Inder Bala claiming herself to be
Scheduled caste, obtained certificate,
contested the election and was declared
elected.
On
subsequent
inquiry
by
Tehsildar, it was found that the very
foundation and basis of her caste
certificate was incorrect and the same has
been cancelled on 24.04.2008 by the
Tehsildar. Tehsildar while proceeding to
cancel the caste certificate has proceeded
to mention that Smt. Inder Bala is from
Kahar/Kamkar
category
which
is
recognized as O.B.C. in the State of U.P.
and only in order to derive benefit of
Scheduled Caste category she has been
claiming herself to be from Kharwar in
this background order has been passed.
This Court also while deciding election
petition in Poornmasi Dehati v. Shambhu
Chaudhary, has taken the view that
Kamkar is not sub-caste of Kharwar,
which is the Scheduled caste. Kamkar is
not mentioned in 1950 Scheduled Castes
order. Can even in such a situation
remedy of election petition be availed.
602 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Such remedy could have been availed,
had the order of cancellation been passed
prior to the declaration of result, but here,
in the present case, elections had taken
place and result had been declared and the
office was being held, then on inquiry it
had been found that Smt. Inder Bala was
not from Scheduled caste category
candidate. Once Smt. Inder Bala was not
from Scheduled caste category candidate,
then it is not at all that her election is
under challenge, but her subsequent
continuance in the said capacity as a
person not belonging to that particular
caste is subject matter of challenge.
Hon'ble Apex Court in the case of
Kurupati Maria Das (supra), as quoted
above, has itself proceeded to mention, if
the application for cancellation of caste
certificate had been found that appellants
caste certificate itself was false and
fraudulent and she genuinely did not
belong to Scheduled caste, then that itself
could have been enough for the appellant
to loose the post that she was elected.
Case in hand is falling in the said category
as here certificate has been canceled by
the competent authority. Hon'ble Apex
Court in such a situation has taken the
view that writ of quo-warranto would lie.

12. In the aforesaid case, it has been
laid down that a writ of quo-warranto
would lie in a case wherein subsequent
continuance of a person in his capacity
belonging to a particular caste is an issue.
In paragraph 16 it has been laid down that
when
disqualification
occurred
subsequent to the filing of nomination,
writ of quo-warranto shall lie. In another
judgement in Dhanai's case (supra) which
was a case of conviction of the elected
candidate, the court issued writ of quowarranto relying on the judgement of
Hon'ble Apex Court in the case of K.
Venkatachalam Vs. Swamichan and
another reported in AIR 1999 SC 1723.
The court held that writ petition under
Article 226 of the Constitution of India
shall be clearly maintainable even when
there was a provision for filing of an
election petition. Following was laid
down in paragraph nos. 14, 17 and 18.: -

14. A perusal of the aforesaid
decision leaves no room for doubt that the
Article 226 of the Constitution of India
would be clearly maintainable even if
there was a provision for filing of an
election petition.

17. In the instant case, there being no
doubt about the admitted position of
disqualification having been incurred by
the respondent no. 7, there is no occasion
for this Court to dismiss the writ petition
on the ground of availability of any other
alternative remedy. Apart from this, it is
evident that the respondent no. 7 had been
restrained by this Court by an interim
order commanding the opposite parties
not to allow the said respondent to
function as Gram Pradhan. It is to be
noted that the order was passed by this
Court on 25th July, 2007 whereas the
District Magistrate took 5 months to pass
a consequential order. The aforesaid
situation
is
absolutely
unfortunate,
inasmuch as, the authorities are required
to obey the orders forthwith without any
hesitation. It is not understood as to why
the District Magistrate took 5 months to
obey the command of this Court.

18.
In
view
of
the
aforesaid
conclusion drawn and in view of the fact
that the respondent no. 7 admittedly
suffers from an inherent disqualification
as provided under Section 5-A, a
declaration is hereby issued that the
2 All] Smt. Krishna Upadhyay V. State of U.P. and others
603
election of the respondent no. 7 as Gram
Pradhan was illegal and invalid and he
shall not be construed to hold the public
office of Gram Pradhan of Gram
Panchayat Muriari, District Ghazipur
forthwith
as
it
stands
accordingly
annulled. The impugned order dated
30.03.2007 is also quashed.

13. The Division Bench judgement
which has been relied by learned counsel
for the respondent was also a case where
writ of quo-warranto was prayed for
against the elected member of Kshetriya
Panchayat on the ground that she was not
eligible to contest the election having
been working as Anganbari Worker. A
Division Bench of this court relying on
the judgement of Hon'ble Apex Court in
the case of Kurupati Maria Das v. M/s.
Dr. Ambedkar Sewa Sansthan and
Others reported in JT 2009 Vol. 7 SCC
287 held that the remedy was to challenge
the election by means of an election
petition. The Division Bench also noticed
that election petition was already filed
against the election of the member of
Kshetriya Panchayat which was pending.
It is useful to quote the following
observations of the Division Bench
judgement: -

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.

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, 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.
604 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

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."

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 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.
2 All] Prahlad Kumar V. The District Magistrate, Allahabad and others
605

14. 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.

The writ petition has no merit and
is dismissed.

15. In view of the foregoing
discussion, it is clear that when the
challenge in the petition is essentially
the challenge to the election of an
elected candidate for which remedy is to
file an election petition, this court
normally does not entertain a writ of
quo-warranto. In the present case, the
petitioner herself has filed Election
Petition No. 2 of 2010 challenging the
election of respondent no. 6 which is
pending consideration. After filing the
election petition, the petitioner has
come up by praying for a writ of quowarranto. The issue which has been
raised
in
the
writ
petition
that
respondent no. 6 was not eligible to
contest the election is the issue in the
election petition which can very well be
gone into in the election petition and
decided. In the facts of the present case
and in view of the Division Bench
judgement in the case of Khem Singh
Pachhara (supra), we are of the view
that the present writ petition for a writ
of quo-warranto need not be entertained.

16. In view of the foregoing
discussion, this writ petition praying for
a writ of quo-warranto cannot be
entertained
and
is
dismissed
accordingly.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.04.2011

BEFORE
THE HON'BLE S.P. MEHROTRA, J.
THE HON'BLE S.C. AGARWAL, J.

Civil Misc. Writ Petition No. 23423 of 2011

Prahlad Kumar

 ...Petitioner
Versus
The District Magistrate, Allahabad
and others

 ...Respondents

Counsel for the Petitioner:
Sri Satyaveer Singh

Counsel for the Respondent:
Smt. Archana Singh
C.S.C.

Constitution of India Art-226-Recovery
Proceeding-House
loan
default
in
Payment
of
installment-questioned
before
Writ
Court-in
view
of
law
developed by Apex Court on alternative
remedy under Securitisation Act Writ
Court generally not entertain PetitionConsidering
undisputed
amount,willingness
to
pay
entire
amount
with
consent
of
partiesPetition
disposed
of
with
certain
observation protecting the interest of
bank of the petitioner.

Held: Para 6

The learned counsel appearing for the
contesting respondents-Bank has no
objection to the above prayer made on
behalf of the petitioner provided the
petitioner
deposits
an
amount
of
Rs.75,000/- by 17.5.2011 and further
deposits the balance amount in three
equal quarterly instalments.
Case law discussed:
2010 (8) SCC 110.