# Smt. Mamta (Elected Pradhan) v. Krishna Devi & Ors

- **Citation:** (2024) 9 ILRA 881
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-09
- **Case number:** Writ C No. 27117 of 2022
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-mamta-elected-pradhan-v-krishna-devi-ors-52530
- **Pages:** 12

## Headnote

A. Civil Law - Constitution of India,1950Article
226-
UP
Panchayat
Raj
Act,1947-Section 12-C-The petitioner
was
elected
as
Pradhan-respondent
no.1 filed an election petition in 2021
challenging the election u/s 12-C of the
Act,1947
citing
corrupt
practices,
bribery,
undue
influence
and
irregularities-Petitioner
raised
objections-Held, the court relied on the
Full bench decision in Sumitra Devi
Case, which mandates the personal
presence of the election petitioner or
their advocate/clerk in their presence
at the time of filing the election
petition-the court found no record or
order sheet confirming the presence of
Krishna devi at the time of filing the
petition-This non-compliance rendered
the petition invalid and incurable-The
court observed that the limitation for
filing a fresh petition had expired-The
court set aside the orders issued by the
prescribed authority-objection raised
by
the
petitioner
regarding
noncompliance of mandatory provisions
was upheld.(Para 1 to 23)

The writ petition is allowed. (E-6)

List of Cases cited:

## Text

9 All. Smt. Mamta (Elected Pradhan) Vs. Krishna Devi & Ors.
881
affecting a party, the right approach is to
grant an opportunity of hearing to him.

9. In view of the above discussion, we
are of the view that the impugned orders
are required to be quashed and set aside
with liberty granted to the Respondent No.1
to issue a show cause notice upon the
Respondent No.2 and to the petitioner
along with the private respondent being
Respondent No.5, grant personal hearing to
the parties and thereafter to pass a reasoned
order.

10. Accordingly, the impugned orders
dated 26.2.2024, 21.5.2024 and 15.3.2024
are quashed and set aside with liberty
granted to the Respondent No.1 to issue a
show cause notice to Respondent No.2 and
to the petitioner along with the private
respondent being Respondent No.5 and
thereafter to pass a reasoned order within a
period of four weeks from date of service
of certified copy of this order, after
granting opportunity of personal hearing to
the parties concerned.

11. With the above direction the writ
petition is disposed of.
----------
(2024) 9 ILRA 881
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2024

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ C No. 27117 of 2022

Smt. Mamta (Elected Pradhan)
 ...Petitioner
Versus
Krishna Devi & Ors. ...Respondents

Counsel for the Petitioner:
Sri Chandan Kumar, Sri Narendra Kumar
Pandey

Counsel for the Respondents:
Sri Ashish Mishra, Sri Awadhesh Kumar
Mishra, C.S.C., Sri Sanjay Kumar

A. Civil Law - Constitution of India,1950Article
226-
UP
Panchayat
Raj
Act,1947-Section 12-C-The petitioner
was
elected
as
Pradhan-respondent
no.1 filed an election petition in 2021
challenging the election u/s 12-C of the
Act,1947
citing
corrupt
practices,
bribery,
undue
influence
and
irregularities-Petitioner
raised
objections-Held, the court relied on the
Full bench decision in Sumitra Devi
Case, which mandates the personal
presence of the election petitioner or
their advocate/clerk in their presence
at the time of filing the election
petition-the court found no record or
order sheet confirming the presence of
Krishna devi at the time of filing the
petition-This non-compliance rendered
the petition invalid and incurable-The
court observed that the limitation for
filing a fresh petition had expired-The
court set aside the orders issued by the
prescribed authority-objection raised
by
the
petitioner
regarding
noncompliance of mandatory provisions
was upheld.(Para 1 to 23)

The writ petition is allowed. (E-6)

List of Cases cited:
1. Sumitra Devi VS Special Judge/Addl Distt &
Sessions Judge E.C. Act, Hardoi & ors. (2020)6
ADJ 134

2. Devendra Yadav Vs Distt Election Offcer/D.M.
Mau(2011)9 RD 219

3. Viresh Kumar Tiwari Vs ADJ, Ballia & ors.
.(2014)1 ADJ 486

(Delivered by Hon'ble Chandra Kumar
Rai, J.)
882 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard Mr. Narendra Kumar Pandey,
learned counsel for the petitioner, Mr.
Awadhesh Kumar Mishra, learned counsel
for respondent No.1 and Mr. Krishna
Mohan Mishra, learned Additional Chief
Standing Counsel for the State-respondents.

2. Brief facts of the case are that
petitioner was elected as Pradhan of Gram
Panchayat-Khutaha, Block-Haliya, Tehsil
Lalganj, District-Mirzapur on the basis of
election held on 26.04.2021. In respect to
the aforementioned election of Gram
Pradhan, respondent No. 1 filed an Election
Petition on 30.06.2021 under Section 12-C
of the U.P. Panchayat Raj Act, 1947
(hereinafter referred to as ' the Act of1947')
read with Rule 3 (1) of U.P. Panchayat Raj
(Settlement of Election Dispute) Rules
1994 (hereinafter referred to as 'the Rule of
1994') which was registered as Election
Petition No. 1576 of 2021, Computerized
Case No.202116530201576.The summon/
notice in the aforementioned election
petition was issued accordingly petitioner
put in her appearance through counsel on
23-07-2021 and filed her objection dated
08-07-2022
with
regard
to
the
maintainability of the election petition as
the election petition was not filed in
presence of election petitioner. Respondent
No.1 filed her cross-objection dated 13-072022 to the petitioner's application dated 807-2022. Prescribed authority vide order
dated 5-08-2022 rejected the objection
raised
by
petitioner
with
regard
to
maintainability of the election petition,
hence, this writ petition for the following
relief.

"(1). Issue order/s or direction/s
calling for the record of the case and set
aside the orders dated 2-07-2021 and 0508-2022
(annexure
No.
1
to
this
application) passed in Election Petition
No. 1576 of 2021, (Computerized Petition
No. T202116530201576) Krishna Devi Vs.
Mamata Vs. and others, preferred by the
Respondent No.1.

(2). Issue order/s or direction/s
to dismiss the Election Petition No. 1576
of 2021, (Computerized Petition No.
T202116530201576) Krishna Devi Vs.
Mamta and others, preferred by the
Respondent No.1".

3. This Court on 09.11.2022 passed
the following order:

"Counter affidavit has been filed
on behalf of respondent no.1 in the Court
today, the same is taken on record.

It is argued by the counsel for
the petitioner that on 30.06.2021 the
presiding officer was not present in the
Court. The pleadings in this regard has
been made in paragraph-25 of the writ
petition.

In response to the same, a
counter affidavit has been filed on behalf
of respondent no.1. In paragraph-2 it is
stated that on 30.06.2021 itself the various
orders were passed by the same presiding
officer and certified copies of the same are
appended along-with counter affidavit.

In this view of the matter, the
Court is of the opinion that Shri Ashish
Mishra, learned Counsel appearing on
behalf of High Court of Judicature at
Allahabad will seek instructions from the
said Prescribed Authority under Section
12(C) of the U.P. Panchayat Raj Act &
Rules 1994 /Sub Divisional Officer,
Lalganj, District - Mirzapur within a
week.

Shri
N.K.
Pandey,
learned
counsel for the petitioner will supply copy
of the present writ petition to Shri Ashish
Mishra, learned counsel within 24 hours.
9 All. Smt. Mamta (Elected Pradhan) Vs. Krishna Devi & Ors.
883

Put up this matter as fresh on
21.11.2022, showing the name of Shri
Ashish Mishra A/R-1303/2012 as counsel
for the High Court of Judicature at
Allahabad/respondent"

4. On 21.11.2022 following order was
passed by this Court:

"Pursuant to the order passed by
this Court, instructions received from the
office of Sub Divisional Magistrate,
Lalganj Mirzapur dated 14.11.2022 placed
before the Court by Sri Ashish Mishra,
learned counsel for the respondent, the
same is taken on record. He is directed to
provide a copy of the instructions to Sri
Narendra Kumar Pandey learned counsel
for the petitioner.

As prayed by Sri Narendra
Kumar Pandey learned counsel for the
petitioner, two weeks time is granted to
seek further instructions in the matter
from his client.

Put up as fresh on 12.12.2022."

5. Learned Counsel for the petitioner
submitted that Election Petition has not
been filed by Respondent No.1 on 30-062021 as per provision of Section 12-C of
the Act of 1947 read with Rules of 1994, as
such, the Election Petition filed by
Respondent No. 1 is liable to be rejected.
He further submitted that from perusal of
first page of the Election Petition, it is fully
demonstrated
that
respondent
No.1/
Election Petitioner was not present at the
time of filing of Election Petition as well as
the Election Petition was not accompanied
by treasury challan which is contravention
of the provisions of the Act of 1947 read
with Rule 3(1) of Rules of 1994 as such,
the impugned order dated 05.08.2022
passed by Prescribed Authority is wholly
illegal. He further submitted that order
sheet of the other two cases fully
demonstrate that concern Presiding Officer
was not holding the court on 30-06-2021.
He further submitted that perusal of the
contents
of
Election
Petition
fully
established that the Election Petition has
been filed on a bald and vague allegations
of corrupt practice of bribery, undue
influence and irregularities committed by
the counting staff during counting of votes.
He submitted that non-compliance of the
mandatory provision of the Act and Rules
regarding the presentation of election
petition is not a curable defect as such, the
objection filed raised by the petitioner
before the prescribed authority cannot be
rejected. He further submitted that in view
of the decision of full Bench of this court
reported in 2020 (6) ADJ 134, Sumitra
Devi vs. Special Judge/Addl. District &
Sessions Judge, E.C. Act, Hardoi and
Others the non-presentation of the election
petition by the election petitioner himself/
herself personally will result in dismissal of
the petition by the prescribed authority. He
further placed reliance upon the following
judgments of this Court in support of his
arguments:

(i) 2011 (9) ADJ 219 Devendra
Yadav Vs. District Election Officer/
District Magistrate, Mau.

(ii) 2014 (1) ADJ 486 Viresh
Kumar Tiwari Vs. Additional District
Judge, Ballia and others.

He
further
submitted
that
impugned order is liable to be set aside and
election petition filed by the petitioner is
liable to be rejected as not maintainable.

6. On the other hand, Mr. Awdhesh
Kumar Mishra, learned counsel appearing
for respondent No.1 submitted that instant
writ petition is not maintainable as the
order impugned is interlocutory order and
884 INDIAN LAW REPORTS ALLAHABAD SERIES
election petition is pending before the
prescribed authority where trial is under
progress.
He
submitted
that
election
petition has been rightly presented by
respondent No.1 complying the provision
of the Act of 1947 and Rules of 1994. He
submitted that there is no provision in the
U.P. Panchayat Raj Act for filing Election
Petition by election petitioner personally.
He
submitted
that
inspite
of
the
aforementioned fact, respondent No.1/
Election Petitioner was present along with
her advocate Sri Visheshwar Prasad Gupta
at the time of the presentation of the
election petition on 30.06.2021 before the
prescribed authority and has also deposited
requisite fee of Rs. 50/- in the head of
Gram Sabha through challan. He submitted
that all the provision of the Act of 1947 and
the Rules of 1994 has been complied with
as such argument advanced by learned
counsel for the petitioner cannot be
accepted.
He
further
submitted
that
allegations made in the election petition for
declaring election of petitioner as null &
void will be examined by prescribed
authority on the basis of the evidence on
record. He submitted that no interference is
required in the matter and writ petition is
liable to be dismissed.

7.
I
have
considered
argument
advanced by learned counsel for the parties
and perused the record.

8. There is no dispute about the fact
that petitioner was elected as Gram
Pradhan of the Gram Panchayat concern
on the basis of election held on 26.04.2021.
There is also no dispute about the fact that
election petition under Section 12-C of the
Act of 1947 has been filed respondent No.
1 which is pending before prescribed
authority. There is also no dispute about the
fact that application/ objection filed by
petitioner
regarding
maintainability/
presentation of the election petition has
been rejected by the prescribed authority
under
the
impugned
order
dated
05.08.2022.

9.
In
order
to
appreciate
the
controversy involved in the matter, the
perusal of Section 12-C of the Act of 1947
and Section 81 of the Representation of
People Act 1951 will be relevant for
perusal which are as under:

12-C.
Application
for
questioning the elections -

(1) The election of a person as
Pradhan or as member of a Gram
Panchayat including the election of a
person appointed as the Panch of the
Nyaya Panchayat under Section 43 shall
not be called in question except by an
application presented to such authority
within such time and in such manner as
may be prescribed on the ground that -

(a) the election has not been a
free election by reason that the corrupt
practice of bribery or undue influence has
extensively prevailed at the election, or

(b) that the result of the election
has been materially affected - i- by the
improper acceptance or rejection of any
nomination or; ii- by gross failure to
comply with the provisions of this Act or
the rules framed thereunder.

(2) The following shall be
deemed to be corrupt practices of bribery
or undue influence for the purposes of
this Act.

(A) Bribery, that is to say, any
gift, offer or promise by a candidate or by
any other person with the connivance of a
candidate of any gratification of any
person whomsoever, with the object,
directly, or indirectly of including -
9 All. Smt. Mamta (Elected Pradhan) Vs. Krishna Devi & Ors.
885

(a) a person to stand or not to
stand as, or withdraw from being, a
candidate at any election; or

(b) an elector to vote or refrain
from voting at an election; or as a reward
to - (i) a person for having so stood or not
stood
or
having
withdrawn
his
candidature; or

(ii) an elector for having voted or
refrained from voting.

(B) Undue influence, that is to
say, any direct or indirect interference or
attempt to interfere on the part of a
candidate or of any other person with the
connivance of the candidate with the free
exercise of any electoral right;

Provided that without prejudice
to the generality of the provisions of this
clause any such person as is referred to
therein who

(i) threatens any candidate, or
any elector, or any person in whom a
candidate or any elector is interested, with
injury of any kind including social
ostracism
and
ex-communication
or
expulsion from any caste or community;
or

(ii) induces or attempts to induce
a candidate or an elector to believe that he
or any person in whom he is interested
will become or will be rendered an object
of divine displeasure or spiritual censure,
shall be deemed to interfere with the free
exercise of the electoral right of such
candidate or elector within the meaning of
this clause.

(3) This application under subsection (1) may be presented by any
candidate at the election or any elector
and shall contain such particulars as may
be prescribed.

Explanation - Any person who
filed a nomination paper at the election
whether such nomination paper was
accepted or rejected, shall be deemed to be
a candidates at the election.

(4) The authority to whom the
application under sub-section (1) is made
shall in the matter of -

(i) hearing of the application
and the procedure to be followed at such
hearing;

(ii) setting aside the election, or
declaring the election to be void or
declaring the applicant to be duly elected
or any other relief that may be granted to
the petitioner, have such powers and
authority as may be prescribed.

(5)
Without
prejudice
to
generality of the powers to be prescribed
under subsection (4) the rules may provide
for summary hearing and disposal of an
application under sub-section (1).

[(6) Any party aggrieved by an
order of the prescribed authority upon an
application under sub-section

(1) may, within thirty days from
the date of the order, apply to the District
Judge for revision of such order on any
one or more the following grounds,
namely -

(a) that the prescribed authority
has exercised a jurisdiction not vested in it
by law;

(b) that the prescribed authority
has failed to exercise a jurisdiction so
vested;

(c) that the prescribed authority
has acted in the exercise of its jurisdiction
illegally or with material irregularity.

(7) The District Judge may
dispose of the application for revision
himself or may assign it for disposal to
any Additional District Judge, Civil Judge
or Additional Civil Judge under his
administrative control and may recall it
from any such officer or transfer it to any
other such officer.
886 INDIAN LAW REPORTS ALLAHABAD SERIES

(8)
The
revising
authority
mentioned in sub-section (7) shall follow
such procedure as may be prescribed, and
may confirm, vary or rescind the order of
the prescribed authority or remand the
case to the prescribed authority for rehearing and pending its decision pass
such interim orders as may appear to it to
be just and convenient.

(9)
The
decision
of
the
prescribed authority, subject to any order
passed by the revising authority under this
section, and every decision of the revising
authority passed under this section, shall
be final.]

Section
81.
Presentation
of
petitions.-(1) An election petition calling
in question any election may be presented
on one or more of the grounds specified in
[sub-section (1)] of section 100 and
section 101 to the [High Court] by any
candidate at such election or any elector
[within forty-five days from, but not
earlier than the date of election of the
returned candidate, or if there are more
than one returned candidate at the
election and the dates of their election are
different, the later of those two dates].

Explanation.-In
this
subsection, "elector" means a person who
was entitled to vote at the election to
which
the
election
petition
relates,
whether he has voted at such election or
not.

[(3) Every election petition shall
be accompanied by as many copies thereof
as there are respondents mentioned in the
petition and every such copy shall be
attested by the petitioner under his own
signature to be a true copy of the
petition.]"

10. Perusal of Rule 3 and 4 of Uttar
Pradesh Panchayat Raj (Settlement of
Election Disputes) Rules, 1994 will be also
relevant which is as under:

3. Election Petition.-

(1) An application under subsection (1) of Section 12-C of the Act shall
be presented before the Sub-Division
Officer, within whose jurisdiction the
concerned Gram Panchayat lies, within
ninety days after the day on which the
result of the election questioned is
announced and shall specify the ground
or grounds on which the election of the
respondent is questioned and contain a
summary of the circumstances alleged to
justify the election being questioned on
such ground:

Provided
that
no
such
application shall be entertained unless it is
accompanied by a treasury challan to
show that the amount of rupees fifty has
been deposited in the Personal Ledger
Account
of
the
Gram
Panchayat
concerned as security.

(2) The person whose election is
questioned and where the petition claims
that the petitioner or any other candidates
shall be declared elected in place of such
person, every unsuccessful candidate shall
be made a respondent to the application.

(3) Every respondent may give
evidence to prove that any person in
respect of whom a claim is made that such
person be declared elected, should not be
declared so elected on the same ground or
ground on which his election could have
been questioned if he had been elected.

4. Hearing of the petition. (1)
Subject to the provisions of the Act and
these rules, every election petition shall be
tried by the Sub-Divisional Officer, as
nearly as may be in accordance with the
procedure applicable under the Code of
Civil Procedure, 1908, for the trial file
9 All. Smt. Mamta (Elected Pradhan) Vs. Krishna Devi & Ors.
887

Provided that

(i) the Sub-Divisional Officer
may hear the petitioner or his counsel and
if he finds that the petition has no
substance, reject the same without the
issue of any notice to the opposite parties;

(ii) it shall not be necessary for
the Sub-Divisional Officer to record the
evidence in full and he may maintain only
a memorandum of evidence produced by
the parties before him;

(iii) if there is a sole petitioner
and he dies, or there is a sole respondent
and he dies, the petition shall abate;

(iv) the Sub-Divisional Officer
may allow only such evidence to be
produced as he deems relevant for the
purpose of deciding the petition;

(v) the District Magistrate may at
any stage, on sufficient cause being
shown, transfer and application made
under sub-section (1) of Section 12-C for
hearing to another Sub-Divisional officer;

(vi) an application not presented
within time or unaccompanied by a
treasure challan as required under subrule (1) of Rule 3 may at any time be
dismissed by the Sub-Divisional Officer;
and

(vii) the Sub-Divisional Officer
ma, on an application of either party made
within fie days after the date of his
decision, review his order.

11. Perusal of the first page of the
election petition will be necessary which is
as under:

न्यायालय तनयत प्राधधकारी/सब डडविजनल
अधधकारी, लालगींज मीरजापुर
चुनाि याधचका
सींख्या02/T2021116530201576/02.7.2021
याधचका द्िारा-कृष्णा देिी उम्र लग० 48
साल पत्नी लर्िप्रसाद तन०ग्राम-गलरा, न्याय
पींचायत-खुटहाीं, विकास खण्ड-हललया, तह०लालगींज, जजला-मीरजापुर।
बनाम
प्रस्तुतकताश
कृष्णा देिी
याधचनी
स्िय
ददनाींक 30-62021ई.
1- ममता उम्र लग०33 साल
पत्नी अरूण कुमार
2- प्रभािती देिी उम्र लग०
53 साल पत्नी दीनानाथ
3- अर्िाक अहमद उम्र
लग० 40 साल पुर
सुकुरूल्ला
&

विश्िेश्िर
प्रसाद
एडिोकेट
30/6/2021
समस्त तन०ग्राम- गलरा,
न्याय
पींचायत-खुटहाीं,
विकास
खण्ड-
हललया,
तह०-लालगींज,
जजला-
मीरजापुर।
पेर्कार
02/07/2021
िाद दजश कर
आ० कायशिाही
करे।
हा०
02/07/2021
SDO(c)
4-
जजला
तनिाशचन
अधधकारी
(पींचायत
एिीं
नगरीय
।
तनकाय),
मीरजापुर
5-सहायक
तनिाशचन
अधधकारी
(पींचायत
एिीं
नगरीय
तनकाय)
मीरजापुर।
6-
ररटतनांग
ऑकिसर
(आर०ओ०) विकास खण्डहललया, मीरजापुर।
7-
सहायक
ररटतनांग
ऑकिसर
(ए०आर०ओ०)
888 INDIAN LAW REPORTS ALLAHABAD SERIES
न्याय
पींचायत-
खुटहाीं,
विकास
खण्ड-हललया,
मीरजापुर।

------------- विपक्षीगण

रा-12ग
उ०प्र०
पींचायत
राज अधध० 1947 सपदठत
तनयम 3(1) उ०प्र० पींचायत
राज (तनिाशचन वििादों का
तनपटारा)
तनयमािली
1994 बाबत प्रधान पद के
पींचायत तनिाशचन मौजा-
गलरा,
वि०ख०-हललया,
जनपद-मीरजापुर।

याधचनी तनम्न तनिेदन करती हैः-

दिा-1- यह कक राज्य तनिाशचन
आयोग (पींचायत) उ०प्र० लखनऊ द्िारा
जारी
अधधसूचना
सींख्या
709/रा०तन०आ०अनु०-3/पीं०तन०/20-21/2021
लखनऊ ददनाींक 26 माचश 2021 ई० के क्रम
में जजला तनिाशचन अधधकारी (पींचायत)
मीरजापुर ने ददनाींक 27 माचश 2021 ई० को
अधधसूचना जारी कर पींचायत तनिाशचन के
तृतीय चरण में जनपद मीरजापुर में
बरस्तरीय पींचायत तनिाशचन के कायशक्रम की
अधधसूचना जारी ककया जजसके द्िारा
जनपद मीरजापुर के समस्त विकास खण्डों
के ग्राम पींचायत सदस्य, प्रधान ग्राम
पींचायत, सदस्य क्षेर पींचायत एिीं सदस्य
जजला पींचायत के तनिाशचन हेतु ददनाींक 13
एिीं 15 अप्रैल 2021 को पूिाशहन 8 बजे से
अपराहन 5 बजे तक नामाींकन दाखखल
करने ददनाींक 16 एिीं 17 अप्रैल 2021 को
पूिाशहन 8 बजे से नामाींकन परों की
समीक्षा/जॉच ि ददनाींक 18 अप्रैल 2021 को
पूिाशहन 8 बजे से अपराहन 3 बजे तक
उम्मीदिारी िापस लेने ि उसी ददन 3 बजे
से प्रतीक आिींटन तथा ददनाींक 26 अप्रैल
2021 ई० को पूिाशहन 8 बजे से कायश की
समाजपत
तक
मतगणना
कराने
की
ततधथ/कायशक्रम तनयत ककया गया।"

12. Perusal of first order sheet dated
02.07.2021 of the election petition will be
relevant which is as under:

"आदेर् पराींक
न्यायालयः उपजजलाधधकारी
मण्डलः विन्ध्याचल, जनपदः लमजाशपुर,
तहसीलः लालगींज
िाद सींख्याः 1576/2021
कींपयूटरीकृत िाद सींख्याः
T2021116530201576
कृष्णा देिी बनाम ममता िगै०

अींतगशत
धाराः-
12
ग,
अधधतनयमः-
उ०प्र०
पींचायती
राज
अधधतनयम, 1947

02.07.2021

आज परािली प्रापत होकर पेर्
हुई। िाद दजश रजजस्टर ककया गया।
तनयमानुसार समन/नोदटस जारी हो।

अतः
9 All. Smt. Mamta (Elected Pradhan) Vs. Krishna Devi & Ors.
889

परािली िास्ते इन्तजार समन
ददनाींक 23.07.2021 को पेर् हो।

उप जजलाधधकारी,

लालगींज।"

13. The perusal of the question answer
supplied by office of respondent No.2/ Sub
Divisional Officer will be necessary which
is as under:

मूल िाद -न्यायालय उपजजलाधधकारी/तनयत
प्राधधकारी महोदय लालगींज
मीरजापुर
चूनाि याधचका नीं०-1576-सन 2021
कम्पयूटरराइज नीं० 202116530201576

धारा - 12 सी पीं०राजेश्िर

कृष्णादेिी बनाम ममता आदद
प्रश्न
उत्तर
क्या
आपके
न्यायालय में चूनाि
याधच० सीं० 1576/-
सन् 2021 कृष्णादेिी
Vs
ममता
ग्राम
पींचायत गलरा में
याधचका में ददनाींक
30/6/2021
को
न्यायालय
में
सुनिायी की गयी
थी, यदद हॉ तो
आडशरसीट
परािली
पर उपलब्ध है?
महोदय,
जी नहीीं।
ह०अ०
18/11/2022
पेर्कार
न्या० S.D.O.(L)

14. The perusal of the instruction
dated 14.11.2022 sent by respondent
No.2/Sub Divisional Officer will be also
relevant which is as under:

"तनदेर् 14/11/22

मा० उच्च न्यायालय इलाहाबाद में योजजत
ररट याधचका सीं० 27117 सन् 2022श्रीमती
ममता बनाम कृष्णा देिी ि 5 अन्य में
अनुदेर् आख्या।

मा० उच्च न्यायालय में योजजत
उपयुशक्त ररट याधचका सीं० 27117 सन्
2022 श्रीमती ममता बनाम कृष्णा देिी ि 5
अन्य में पाररत आदेर् ददनाींक 09.11.2022
के अनुपालन में िाींतछत अनुदेर् आख्या
तनम्नित है-

1-
ददनाींक
30.06.2021
ददन
बुद्धिार को न्यायालय उप जजलाधधकारी
लालगींज मीरजापुर में कुल 82 िाद
परािललयॉ सुनिाई हेतु सूचीबद्ध थी।

2-
ददनाींक
30.06.2021
को
तत्कालीन
पीठासीन
अधधकारी
द्िारा
न्यायालय में बैठकर न्यातयक कायश ककया
गया था क्रम सीं० 01 से 09 तक की िाद
परािली में सुनिाई हुई तथा आदेर् पाररत
हुआ।

3- न्यायालय के अलभलेख देखने
से विददत होता है कक क्रमाींक 09 के बाद
तनयत िाद परािललयों में पुकार एिीं
सुनिाई नहीीं हुई तथा आदेर् परक में
पेर्कार द्िारा यह अींककत ककया गया है कक
890 INDIAN LAW REPORTS ALLAHABAD SERIES
पीठासीन
अधधकारी
महोदय
अन्य
प्रर्ासतनक कायश में व्यस्त हैं तथा सुनिाई
हेतु अधग्रम ततधथ तनयत की गयी है।

4- इस प्रकार ददनाींक 30.06.2021
को
तत्कालीन
पीठासीन
अधधकारी
न्यायालय में उपजस्थत थे तथा उनके द्िारा
िाद परािललयों में न्यातयक कायश ककया
गया ककन्तु बाद में अन्य प्रर्ासतनक कायश
में व्यस्त हो जाने के कारण र्ेर् िाद
परािललयों में अधग्रम ततधथ अींककत की
गयी।

उप जजलाधधकारी, लालगींज,

मीरजापुर।

14/11/22"

15. The perusal of the aforementioned
record as quoted above demonstrate that
there is no record/ order sheet which
demonstrate that election petitioner was
present on the date of presentation of
election petition.

16. The ratio of law laid down by the
full bench of this Court in Sumitra Devi
(Supra) will be also relevant which is as
under:

81. Based on the discussion
made, and subject to it, we summaries
our answers to the questions referred to
us (as rephrased by us), as under:-

1. (a) An Election Petition
under Section 12-C(1) and (3) of the Act,
1947
has
to
be
necessarily
and
mandatorily presented by the candidate/
Election petitioner himself, personally, if
it is in his name. However, if it is
presented by the Advocate or his clerk,
in the presence of the candidate/ Election
Petitioner
before
the
Prescribed
Authority,
it
would
be
sufficient
compliance of Section 12-C(3) .

(b) In the event an election
petition is not presented as aforesaid
then it would be fatal and an incurable
defect which has to result in dismissal of
the petition by the Prescribed authority
with liberty however, to the candidate to
file a fresh petition, if the limitation is
still available and before it expires, in
accordance
with
Section
12-C(3),
personally, or by his Advocate or Clerk
in his presence. He can not adjourn the
matter
to
some
other
date
for
rectification of the incurable defect in
those proceedings.

2. The decision in Lal Bahadur
Singh's case (supra) does not lay down
the law correctly as regards Question
No.1. The decision in Viresh Kumar
Tiwari's case (supra) lays down the law
correctly subject to the proposition that
an election petition filed by the Advocate
or his Clerk in presence of the candidate
before the Prescribed Authority is also in
accordance with section 12-C (3) of the
Act 1947. In Urmila's case (supra)
Question No.1 has not been decided.

17. The perusal of the issue answered
by the Full Bench in Sumitra Devi (supra)
as quoted above fully demonstrates that the
election petition under Section 12-C (1) &
(3) of the Act has to be necessarily and
mandatorily
presented
by
the
candidate/election
petitioner
himself/herself personally if it is in his/her
name. However, if it is presented by
advocate or his clerk in presence of the
candidate/election petitioner before the
Prescribed Authority which would be
sufficient compliance of Section 12-C(3) of
the Act. The answer as quoted above
9 All. Smt. Mamta (Elected Pradhan) Vs. Krishna Devi & Ors.
891
further demonstrates that if the election
petition is not presented as aforesaid, then
it would be fatal and incurable defect which
has to result in dismissal of the petition by
the Prescribed Authority with liberty to the
candidate to file fresh petition if the
limitation is still available before it expires
in accordance with the provisions of
Section 12-C(3) of the Act personally or by
his advocate or clerk in his presence.

18.
In
paragraph no.74
of
the
judgment of the Full Bench in Sumitra
Devi (supra), it has been held that any
objection regarding non-presentation of the
election petition by a candidate as aforesaid
should be raised at the earliest when the
trial is pending before the Prescribed
Authority and not after disposal of the
election petition, such as, at the revisional
stage or before the High Court as if the
objection is not raised during trial, a
specific issue cannot be framed in this
regard and the parties would not be able to
lead evidence in respect to it as well as if
the objection is raised at a later stage,
evidence may not be available by then or
the officer before whom the petition was
presented. It has been also held by the Full
Bench in the same paragraph that once
there is adjudication of election petition on
merit, then it would be highly inequitable
to allow such a plea or objection to be
raised at the revisional level or before the
High Court under Article 226 of the
Constitution when the election petition has
succeeded and it will be treated that
objection regarding presentation of the
election petition has been waived by the
party concerned. The paragraph no.74 & 75
of the judgment rendered in Sumitra Devi
(supra) is as under:-

"74. We are also of the view that
any objection regarding non-presentation
of an Election Petition by a candidate as
aforesaid should be raised at the earliest
when the trial is still pending before the
Prescribed
Authority
and
not
after
disposal of the Election Petition such as at
the Revisional stage or before the High
Court. This is for the reason firstly, if not
raised during trial a specific issue can not
be framed in this regard and the parties
would not be able to lead evidence in
respect to it, secondly, if raised at a later
stage evidence may not be available by
then or the Officer before whom the
petition was presented may himself not be
available. Thirdly, once there is an
adjudication of the Election petition on
merits, then, it will be highly inequitable
to allow such a plea or objection to be
raised at the Revisional level or before the
High Court under Section 226 of the
Constitution, especially when, the Election
Petition has succeeded. It will therefore
have to be treated as waived, as has been
held in Devendra Yadav's case (supra)."

75. We are also of the view that
Prescribed Authorities should specifically
and mandatorily record in the order sheet
as to whether the Election Petition has
been
presented
by
the
candidate
personally or, by his Advocate or clerk in
the presence of the candidate, or not ? The
consequences will follow accordingly as
discussed
above.
This
will
avoid
unnecessary litigation based on such pleas
and save a lot of time and energy of all the
stakeholders. The Prescribed Authorities
and Revisional Authorities under Section
12-C(1) and 12-C(6) of the Act, 1947 are
directed to strictly comply with these
observations/directions.

19. In the instant matter the specific
objection/ application dated 08.07.2022 has
been filed by the petitioner regarding nonpresentation of the election petition filed by
892 INDIAN LAW REPORTS ALLAHABAD SERIES
election petitioner herself but the same has
been rejected in arbitrary manner under the
impugned order.

20. Mere signature of the election
petitioner
on
the
election
petition,
photograph of election petitioner on the
election petitioner and affidavit in support
of election petition will not amount to
presence of the election petitioner at the
time of presentation unless there is specific
order sheet regarding presence of election
petitioner at the time of presentation. In the
instant matter, there is no order sheet or any
other record to the effect that the election
petitioner was present at the time of
presentation. In the full bench decision of
Sumitra Devi (Supra) which was passed
on 12.06.2020 there was specific direction
in paragraph No.75 of the full bench to the
prescribed authorities who were exercising
jurisdiction under Section 12-C of U.P.
Panchayat Raj Act, 1947 to maintain proper
order sheet of the election petition regarding
presentation of election petition as such non
mentioning of the presence of the election
petitioner will result into dismissal of the
election petition as the same is incurable
defect. The limitation for filing fresh election
petition has already expired as such further
trial of election petition for adjudication of
election petition on merit is abuse of process
of law.

21. No useful purpose will be served by
remanding the matter again before prescribed
authority to examine the issue of presentation
of election petition as under the impugned
order issue regarding presentation of election
petition has been considered accordingly this
court has examined the issue of presentation
of election petition in the light of evidence
brought on record by both parties. The issue
relating to mandatory deposit of Rs.50/-
along with election petition is not required to
be adjudicated in view of the adjudication of
the issue regarding presentation of the
election petitioner by election petitioner.

22. Considering the entire facts and
circumstances of the case, the impugned
order
dated
05.08.2022
rejecting
the
petitioner's
objection
dated
08.07.2022
regarding
non-presentation
of
election
petition by election petitioner herself as well
as order dated 02.07.2021 entertaining the
election petition are liable to be set aside and
the same are hereby set aside. The objection
dated 08.07.2022 filed by petitioner is
allowed and election petition filed by
respondent no.1 is hereby dismissed.

23. Writ petition stands allowed.

24. No order as to costs.
----------
(2024) 9 ILRA 892
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.09.2024

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.
THE HON'BLE MANJIVE SHUKLA, J.

Writ C No. 27976 of 2024

Mehmood Pracha ...Petitioner
Versus
E.C.I. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Omar Zamin

Counsel for the Respondents:
C.S.C., Sri Jitendra Ojha

Civil Law-The Constitution of India, 1950Article 226 - The Advocates Act-1961Petitioner appeared wearing his coat and band
and argued the matter without informing the
Court that he is appearing in person- Petitioner