# Smt. Poonam Maurya v. State of U.P. & Ors

- **Citation:** (2024) 9 ILRA 680
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-04
- **Case number:** Writ C No. 3319 of 2024
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-poonam-maurya-v-state-of-u-p-ors-52506
- **Pages:** 11

## Headnote

A. Civil Law - U.P. Panchayat Raj Act, 1947
- Section 12C - Uttar Pradesh Panchayat
Raj (Settlement of Election Disputes)
Rules, 1994 - Rule 3 - Representation of
the People Act, 1951 - Section 81(1) -
Election Petition - Presentation of Election
Petition - Election petition under Sections
12-C (1) & (3) has to be necessarily and
mandatorily presented by the candidate
himself/herself personally if it is in
his/her name. However, if it is presented
by an advocate or his clerk in the presence
of the candidate before the Prescribed
Authority,
it
would
be
sufficient
compliance with Section 12-C(3) of the
Act.
If
the
election
petition
is
not
presented as aforesaid, then it would be a
fatal and incurable defect which has to
result in dismissal of the petition by the
Prescribed Authority, with liberty to the
candidate to file a 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.
(Para 15)
A. Civil Law - U.P. Panchayat Raj Act, 1947
- Section 12C - Representation of the
People Act, 1951 - Section 81(1) -
Objection as to Presentation of Election
Petition - Any objection regarding nonpresentation of the election petition by a
candidate 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. In
the
instant
case,
objection
regarding
presentation of the election petition was not
raised during the trial before the Prescribed
Authority; accordingly, the issue was not
framed before the Prescribed Authority.
Objection regarding presentation of the
election petition was taken for the first time
in revision after conclusion of the trial by the
Prescribed
Authority.
Court
found
no
illegality in the order passed by the
Prescribed
Authority/Sub-Divisional
Magistrate. (Para 16)
Dismissed. (E-5)
List of Cases cited:

## Text

680 INDIAN LAW REPORTS ALLAHABAD SERIES
which the matter is proposed to be decided
against him, and to inspect the documents
which are relied upon for the purpose of
being used against him, to have the
witnesses who are to give evidence against
him examined in his presence and have the
right to cross-examine them, and to lead
his
own
evidence,
both
oral
and
documentary, in his defence. The process of
a fair hearing need not, however, conform
to the judicial process in a court of law,
because judicial adjudication of causes
involves a number of technical rules of
procedure
and
evidence
which
are
unnecessary and not required for the
purpose of a fair hearing within the
meaning of audi alteram partem rule in a
quasi-judicial or administrative inquiry."

81.Audi
alteram
partem,
therefore, entails that an entity against
whom evidence is collected must :

(i) be provided an opportunity to
explain the evidence against it;

(ii) be informed of the proposed
action, and

(iii) be allowed to represent why
the proposed action should not be taken."

10. In light of the above, the writ
petition is allowed. The impugned orders
dated 28.03.2018 passed by the Sub
Divisional Magistrate, Mishrikh, District
Sitapur and order dated 21.01.2022 passed
by
the
Joint
Commissioner
(Food),
Lucknow Division, Lucknow are set aside.

11. The matter is remitted to the Sub
Divisional Magistrate, Mishrikh, District
Sitapur for proceeding afresh in the matter
from the stage of filing of reply of the
petitioner.

12. It is noticed that reply of the
petitioner is already on record and only
opportunity of personal hearing is to be
granted by the Sub Divisional Magistrate,
Mishrikha, District Sitapur.

13. In the aforesaid circumstances, the
Sub
Divisional
Magistrate,
Mishrikh,
District Sitapur is directed to fix a date
within two weeks from the date a certified
copy of this order is produced before him
for personal hearing to the petitioner. On
the other hand, the petitioner undertakes to
appear
before
the
Sub
Divisional
Magistrate before the date fixed or any
other date fixed within one week thereafter
for personal hearing before the Sub
Divisional Magistrate, Mishrikh, District
Sitapur. After conclusion of the opportunity
of personal hearing granted by this Court,
he shall proceed to pass orders in the said
matter within four weeks thereafter in
accordance with law.

14.
With
the
aforesaid
observations/directions, the petition stands
allowed.
----------
(2024) 9 ILRA 680
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.09.2024

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ C No. 3319 of 2024

Smt. Poonam Maurya ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Dhirendra Kumar Singh Rathore, Sri
Madhur Prakash

Counsel for the Respondents:
C.S.C., Sri Harish Chandra Dwivedi, Sri
Navneet Singh, Sri D.K. Dwivedi
9 All. Smt. Poonam Maurya Vs. State of U.P. & Ors.
681
A. Civil Law - U.P. Panchayat Raj Act, 1947
- Section 12C - Uttar Pradesh Panchayat
Raj (Settlement of Election Disputes)
Rules, 1994 - Rule 3 - Representation of
the People Act, 1951 - Section 81(1) -
Election Petition - Presentation of Election
Petition - Election petition under Sections
12-C (1) & (3) has to be necessarily and
mandatorily presented by the candidate
himself/herself personally if it is in
his/her name. However, if it is presented
by an advocate or his clerk in the presence
of the candidate before the Prescribed
Authority,
it
would
be
sufficient
compliance with Section 12-C(3) of the
Act.
If
the
election
petition
is
not
presented as aforesaid, then it would be a
fatal and incurable defect which has to
result in dismissal of the petition by the
Prescribed Authority, with liberty to the
candidate to file a 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.
(Para 15)
A. Civil Law - U.P. Panchayat Raj Act, 1947
- Section 12C - Representation of the
People Act, 1951 - Section 81(1) -
Objection as to Presentation of Election
Petition - Any objection regarding nonpresentation of the election petition by a
candidate 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. In
the
instant
case,
objection
regarding
presentation of the election petition was not
raised during the trial before the Prescribed
Authority; accordingly, the issue was not
framed before the Prescribed Authority.
Objection regarding presentation of the
election petition was taken for the first time
in revision after conclusion of the trial by the
Prescribed
Authority.
Court
found
no
illegality in the order passed by the
Prescribed
Authority/Sub-Divisional
Magistrate. (Para 16)
Dismissed. (E-5)
List of Cases cited:
1. Sumitra Devi Vs Special Judge/Addl. District &
Sessions Judge, E.C. Act, Hardoi & ors., 2020
(6) ADJ 134
2. G.V. Sreerama Reddy & anr. Vs Returning
Officer & ors., 2009(0) Supreme (SC) 1438
(Delivered by Hon'ble Chandra Kumar
Rai, J.)

1. Heard Mr. Dhirendra Kumar Singh
Rathor / Mr. Madhur Prakash, learned
counsel for the petitioner, learned standing
counsel for the state-respondents, Mr.
Harish Chandra Dwivedi and Mr. Navneet
Singh, holding the brief of Mr. D.K.
Dwivedi, learned counsel for respondent
no.7.

2. Brief facts of the case are that
petitioner was elected as Gram Pradhan of
the Gram Panchayat Dhanauri, Block &
Tehsil Swar, District Rampur in pursuant to
the election held on 15.4.2021. In respect to
the aforementioned election, an election
petition under Section 12-C of the U.P.
Panchayat Raj Act, 1947 (hereinafter
referred to as the "Act") has been filed by
respondent no.7/Smt. Shobha Rani before
the Sub Divisional Magistrate/Prescribed
Authority, on the ground that the petitioner
was not eligible for contesting the election
of Gram Pradhan. The Prescribed Authority
framed 11 issues in the election petition.
An application was filed to decide the issue
nos. 1, 3 & 5 as preliminary issues. The
petitioner filed reply to the election
petition, denying the allegation made in the
election petition, stating that petitioner was
not holding the post of Shiksha Mitra at the
time of filing her nomination. The
petitioner also filed her objection to the
application filed by the election petitioner
to decide the issue nos. 1, 3 & 5 as
682 INDIAN LAW REPORTS ALLAHABAD SERIES
preliminary
issues.
The
Prescribed
Authority/S.D.M.
vide
order
dated
28.7.2023 allowed the election petition and
declared the election of the petitioner for
the post of Gram Pradhan as void. The
Prescribed Authority has also declared the
post of Gram Pradhan vacant in respect to
gram panchayat Dhanauri, Block and
Tehsil
Swar,
District
Rampur.
The
petitioner challenged the order of the
Prescribed Authority dated 28.7.2023 by
way of revision under Section 12-C(6) of
the Act before the District Judge which was
registered as Revision No.24 of 2023,
wherein specific ground was taken that
election petition was not presented by
election petitioner herself, as such, the
election petition cannot be entertained.
Respondent no.7/Smt. Shobha Rani also
filed a revision which was registered as
Revision No.26 of 2023 with the prayer
that after declaring the election of the
petitioner as void, respondent no.7 should
be declared elected as Gram Pradhan as
respondent no.7 was on 2nd position in the
election held on 15.4.2021. The revisional
court/District Judge vide order dated
9.1.2024 dismissed both the revisions,
hence, this writ petition has been filed for
the following reliefs:-

i) issue a writ, order or
direction in the nature of certiorari
quashing the impugned judgement and
order dated 28.07.2023 (Annexure No. 1)
passed
by
the
respondent
no.3,
Prescribed Authority/Court of SubDivisional
Magistrate,
Tehsil
Swar,
District Rampur of Moradabad Division,
in Case No. 2194/ Computerized Case
No. T2021135902194 of 2021 (Smt.
Sobha Rani Vs. Smt. Poonam Maurya
and others) and judgement and order
dated 09.01.2024 (Annexure No.2) passed
by respondent no.2 / Revising Authority /
District Judge, Rampur in Civil Revision
No.
24
of
2023
(CNR
No.
UPRPO10059852023 (Smt. Sobha Rani
w/o
Sanjai
Kumar
and
others)
respectively and calling for records of
the case.

ii) Issue a writ, order or
direction in the nature of mandamus
commanding the respondents to treat the
petitioner not being in service in any
manner from the date of tendering her
resignation dated 23.03.2021 (Annexure
No. 8 to the writ petition).

3. This Court vide order dated
4.3.2024 entertained the matter, issued
notice to respondent nos. 8 to 15 as
respondent no.7 was represented by the
counsel. All the respondents were directed
to file counter affidavit in the matter. In
pursuance of the order dated 4.3.2024,
respondent no.7 has filed her counter
affidavit as well as learned standing
counsel has also filed his counter affidavit.
Petitioner has filed his rejoinder affidavit in
the matter.

4. Learned counsel for the petitioner
submitted that election petition under
Section 12-C of the Act should be filed by
the election petitioner himself/herself as
provided under Section 12-C(3) of the Act
as
well
as
Section
81(1)
of
the
Representation of the People Act, 1951. He
further submitted that if the election
petition has not been presented by the
election petitioner herself, the election
petition
cannot
be
entertained.
He
submitted that the other claim set up in the
election petition by respondent no.7 was
also misconceived as petitioner was not
Shiksha Mitra at the time of filing of her
nomination for the post of Gram Pradhan.
He placed the provisions contained under
Section 12-C(3) of the Act as well as
9 All. Smt. Poonam Maurya Vs. State of U.P. & Ors.
683
Section 81 of the Representation of the
People Act, 1951 in support of his
arguments. He further placed the Full
Bench decision of this Court, reported in
2020 (6) ADJ 134, Sumitra Devi vs.
Special Judge/Addl. District & Sessions
Judge, E.C. Act, Hardoi and Others in
order to demonstrate that non-compliance
of Section 12-C(3) of the Act would be
fatal and incurable. He further placed
reliance upon the judgment of Hon'ble
Apex Court reported in 2009(0) Supreme
(SC) 1438, G.V. Sreerama Reddy and
Another vs. Returning Officer and
Others in which the Hon'ble Apex Court
has held that Section 81(1) of the
Representation of the People Act, 1951
provides for presentation of election
petition by any candidate / elector relating
to the election personally to the authorized
officer of the High Court and failure to
adhere to such course would be contrary to
said provision and in that event the election
petition is liable to be dismissed on the
ground of improper presentation. He
submitted that in revision filed by the
petitioner under Section 12-C(6) of the Act,
the specific ground was taken that the
election petition was not presented by
respondent no.7 herself, as such, the
election petition filed by respondent no.7
cannot be entertained and allowed by the
Prescribed Authority but the revisional
court has dismissed the revision on
misconceived grounds. He submitted that
non-presentation of the election petition by
the election petitioner according to the
provisions of Section 12-C(3) of the Act is
an incurable defect, as such, the election
petition was liable to be dismissed by the
Prescribed Authority but the same has been
illegally allowed and the vacancy for the
post of Gram Pradhan has been declared
vacant under the impugned order. He
submitted that during pendency of the
instant petition, the notification has been
issued for the election on the vacant post of
Gram Pradhan which has been challenged
by the petitioner in the connected Writ C
No.23765 of 2024. He submitted that this
Court while hearing the instant writ
petition, has passed a detailed order on
6.8.2024, directing that the result of the
election of the Pradhan in respect of the
gram panchayat concerned shall not be
declared till further orders of this Court, as
such, the instant petition be heard and
disposed of on merit in accordance with
law.

5. On the other hand, learned standing
counsel and the learned counsel appearing
for respondent no.7 submitted that due to
notification issued on 15.7.2024 for holding
the election on the vacant seat of gram
panchayat concerned, the instant writ
petition has become infructuous. They
further submitted that election petition was
filed according to the provisions contained
under Section 12-C(3) of the Act by
respondent no.7 herself, as such, there is no
illegality in the impugned judgment/order
passed by the Prescribed Authority /
S.D.M. for declaring the election of the
petitioner as void. They also submitted that
no objection was raised by the petitioner
before the Prescribed Authority regarding
presentation of the election petition, as
such, the petitioner cannot raise the
objection regarding the presentation of the
election petition in the revision filed by the
petitioner under Section 12-C(6) of the Act.
They further submitted that in the case of
Sumitra Devi (supra), it has been held that
objection
relating
to
presentation
of
election petition, should be raised at the
very initial stage before the Prescribed
Authority otherwise it shall be deemed that
the plea has been waived by the party
concerned. They also submitted that the
684 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner was holding the post of Shiksha
Mitra, as such, she cannot contest the
election for the post of Gram Pradhan.
They further submitted that considering the
entire facts on record, the Prescribed
Authority has allowed the election petition
and declared the election of the petitioner
as void. They submitted that the record
demonstrates that respondent no.7 was very
much
present
before
the
Prescribed
Authority at the time of presentation, as
such,
there
was
no
defect
in
the
presentation of election petition. They
submitted that no interference is required
against the impugned judgment/order and
the writ petition is liable to be dismissed.

6. In reply, counsel for the petitioner
submitted that plea relating to presentation
of election petition will go to the root of the
matter which is pure legal plea in the
election law, as such, the same can be
raised at any stage. He placed following
case law of Hon'ble Apex Court in support
of his argument:-

(i) 2004 13 SCC 340, Paul
Industries (India) vs. Union of India and
Others;

(ii) 2011 0 Supreme (SC) 862,
The National Textile Corporation Ltd.
vs. Nareshkumar Badrikumar Jagad &
Others;

(iii) AIR 2010 Supreme Court
1089, M/s Sanghvi Reconditioners Pvt.
Ltd. vs. Union of India and Others;

(iv) 1979 0 Supreme (SC) 37,
Tarinikamal Pandit and Others vs.
Perfulla Kumar Chatterjeet (dead) by
L.Rs.;

(v) 2000 (3) Supreme 367, Ajaib
singh vs. State of Punjab, &

(v) 1997 0 Supreme (SC) 106,
Collector of Central Excise, Ahmedabad
vs. Pioma Industries and Imperial Soda
Factory.

7. I have considered the arguments
advanced by learned counsel for the parties
and perused the records.

8. There is no dispute about the fact
that petitioner was elected as Gram
Pradhan of the gram panchayat concerned.
There is also no dispute about the fact that
in the election petition filed by respondent
no.7, the election of the petitioner was
declared void and vacancy for the post of
Gram Pradhan in respect to the gram
panchayat concerned was declared vacant.
There is also no dispute about the fact that
the revision filed by the petitioner as well
as respondent no.7 against the order of the
Prescribed Authority has been dismissed by
the District Judge vide order dated
9.1.2024.

9. In order to appreciate the issue
involved in the mater, perusal of Section
12-C of the Act and Section 81 of the
Representation of the People Act, 1951 will
be necessary which are quoted hereunder:-

"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
9 All. Smt. Poonam Maurya Vs. State of U.P. & Ors.
685

(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 -

(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 subsection (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;
686 INDIAN LAW REPORTS ALLAHABAD SERIES

(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.

(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 re-hearing 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. The perusal of the provisions as
quoted above, demonstrate that election
petition has to be given or filed by any
candidate of the election. The provision
further provides that presentation of the
election petition by the advocate of the
candidate or his clerk is not permissible
unless election petitioner is present in
person.

11. The perusal of Rule 3 of the Uttar
Pradesh Panchayat Raj (Settlement of
Election Disputes) Rules, 1994 will be
relevant which is quoted hereunder:-

3. Election Petition.- (1) An
application under sub-section (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
9 All. Smt. Poonam Maurya Vs. State of U.P. & Ors.
687
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.

12. The perusal of the Rule quoted
above, provides that the S.D.O. who is to
discharge his duty as Prescribed Authority
should record about the presence of the
election
petitioner
at
the
time
of
presentation of the election petition.

13. The issues which were framed
before the Prescribed Authority will be
relevant for perusal which are as under:-

"िाद पर एिीं प्रततिाद पर पर
प्रस्तावित िाद बबन्दु प्रस्तुत हुये जजनके
आधार
पर
न्यायालय
द्िारा
ददनाींक
15.09.2022 को तनम्नललखखत िाद बबन्दु
विरधचत ककये गयेः-

बबन्दु सीं 1- क्या प्रततिादी सीं०1
लर्क्षालमर (लाभ का पद) धारण करते हुए
ग्राम पींचायत धनौरी विकास खण्ड स्िार के
प्रधान पद का चुनाि ल़िने के ललए तनरशह
(अयोग्य) थी। यदद हाीं, तब प्रभाि।

बबन्दु सीं०2 - क्या प्रततिादी नीं० 1
प्राथलमक
विद्यालय
धनौरी
प्रथम
में
लर्क्षालमर (लाभ का पद) धारण करते हुए
ग्राम पींचायत धनौरी के प्रधान पद पर
तनिाशधचत हुयी है। यदद हाीं, तब प्रभाि।

बबन्दु सीं०3- क्या प्रततिादी नीं० 1
द्िारा ग्राम पींचायत धनौरी का प्रथान पद
का चुनाि पींचायत राज एक्ट अधधतनयम
की धारा 5क में उल्लेखखत तनरशहता
(अयोग्यता) के कारण लडे जाने के कारण
अिैध घोवर्त कर तनरस्त करते हुए नये
चुनाि का आदेर् पाररत ककया जाना उधचत
है। यदद हाीं, तब प्रभाि।

बबन्दु सीं०4- क्या प्रततिादी नीं०1
तथ्यों को छुपाकर चुनाि ल़िने के कारण
अपराधधक अिमानना की दोर्ी है। यदद हाीं,
तब प्रभाि।

बबन्दु सीं०5- क्या कानूनन तौर पर
प्रततिादी नीं०1 पींचायत राज अधधतनयम की
धारा 5क के अन्तगशत तनरशहता के आधार
पर विजयी होने के पश्चात् त्याग पर देने
से उसकी तनरशहता (अयोग्यता) समापत हो
जाएगी। यदद नहीीं तब प्रभाि।

बबन्दु सीं०6 - क्या बरस्तरीय
पींचायत चुनाि सन् 2021 में विपक्षी नीं०1
को ग्राम पींचायत धनौरी विकास खण्ड स्िार
जजला रामपुर को ग्राम प्रधान पद हेतु
विजयी घोवर्त ककया गया है यदद हाीं तो
इसका प्रभाि।
688 INDIAN LAW REPORTS ALLAHABAD SERIES

बबन्दु सीं०7 - क्या बरस्तरीय
पींचायत सन् 2021 में विपक्षी नीं०1 को ग्राम
पींचायत धनौरी विकास खण्ड स्िार के
प्रधान पद हेतु सबसे अधधक 881 मत
प्रापत हुए। यदद हाीं तो इसका प्रभाि।

बबन्दु सीं०8- क्या विक्षी नीं०1 ने
तनयमानुसार तनधाशररत अिधध में नामाींकन
प्रकक्रया
प्रारम्भ
होने
से
पूिश
अपना
लर्क्षालमर पद से त्याग पद तत्कालीन
प्राधानाध्यावपका
महोदया
प्रारजम्भक
विद्यालय धनौरी प्रथम विकास खण्ड स्िार
रामपुर
को
ललखखत
रूप
से
ददनाींक
23.3.2021 को दे ददया था, यदद हाीं तो
इसका प्रभाि।

बन्दु सीं०9- क्या विपक्षी नीं०1
उत्तरदाता
के
त्यागपर
पर
विचाराथश
तत्कालीन प्रधानाध्यावपका महोदया स्िार
सम्बजन्धत उच्च अधधकाररयों को समय से
अग्रसाररत करना था सम्भितः समय
अभाि कोविड-19 महामारी के िजह से
अग्रसाररत न हो सकने िलतः विपक्षी नीं०1
प्रभाि उत्तरदाता ने पर ददनाींक 05.05.2021
द्िारा श्रीमान बेलसक लर्क्षाधधकारी महोदय
रामपुर को अिगत कराया, यदद हाीं तो
इसका प्रभाि।

बबन्दु सीं०10- क्या विपक्षी नीं०1
उत्तरदाता के खाते में ददनाींक 22.03.2021 से
22.06.2021 तक का मानदेय खाते में आने
ि विपक्षी नीं० 1 उत्तरदाता द्िारा ददनाींक
23.03.2021
से
22.06.2021
तक
का
मानदेय जररए चैक सीं० 005141 ददनाींक
22.06.2021 द्िारा मुिललग 12581/-रू०
श्रीमान बेलसक लर्क्षाधधकारी महोदय रामपुर
को लौटा ददया गया/िापस कर ददया गया।
यदद हाीं, तो इसका प्रभाि।

बबन्दु सीं०11- क्या विपक्षी सीं०1
ग्राम पींचायत धनौरी विकास खण्ड स्िार
रामपुर की तनिाशधचत मौजूदा प्रधान है यदद
हाीं तो इसका प्रभाि।"

14. The issue regarding presentation of
election petition under Section 12-C of the
Act has already been examined by Full
Bench of this Court in the case of Sumitra
Devi (supra). The Full Bench has answered
the issue which was referred in the
following manner:-

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),
9 All. Smt. Poonam Maurya Vs. State of U.P. & Ors.
689
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.

15. 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
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.

16.
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 of
the judgment rendered in Sumitra Devi
(supra) is as under:-

"74. We are also of the view
that
any
objection
regarding
nonpresentation 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
690 INDIAN LAW REPORTS ALLAHABAD SERIES
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)."

17. In the instant matter, the objection
regarding presentation of the election
petition has admittedly not been raised
during
trial
before
the
Prescribed
Authority, accordingly, the issue was not
framed before the Prescribed Authority.
The objection regarding presentation of the
election petition for the first time has been
taken in revision after conclusion of trial by
the Prescribed Authority by which the
election petition was allowed and the
election of the petitioner was held to be
void.

18. In view of the ratio of law laid
down by the Full Bench of this Court in
Sumitra Devi (supra), there is no illegality
in
the
impugned
order
passed
by
respondent no.3/Prescribed Authority/Sub
Divisional Magistrate.

19. The writ petition is dismissed.

20. Interim order granted earlier by
this
Court
on
6.8.2024
by
which
declaration of election result was stayed,
stands vacated.

21. No order as to costs.

22. The Registrar (Compliance) is
directed to communicate this order to
respondent
no.5/District
Election
Officer/District Collector, District Rampur,
forthwith.
----------
(2024) 9 ILRA 690
ORIGINAL JURISDICTION
CIVIL SIDE
DATED LUCKNOW 18.09.2024

BEFORE

THE HON'BLE JASPREET SINGH, J.

Writ - C No. 3418 of 2022
With
Writ - C No. 14794 of 2021

Arya Pratinidhi Sabha, Lucknow Thru
Pradhan Devendra Pal Verma & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Lalta Prasad Misra, Sri Atul Kumar
Dwivedi, Sri Vineet Bihari Patel

Counsel for the Respondents:
C.S.C., Sri Gaurav Mehrotra, Maria Fatima,
Sri Nadeem Murtaza, Sri Nakul Pathak, Sri
Ratnesh Chandra, Sri Santosh Kumar
Tripathi, Sri Sharad Dwivedi, Sonal Bajpai

A. Civil Law - Societies Registration Act,
1860- Sections 4-B & 25 - Election dispute
- genuine and bona fide dispute regarding
the
election
of
the
committee
of
management -Deputy Registrar is not to
act as a rubber stamp authority. Deputy
Registrar is required to apply his judicial
mind to the facts and circumstances to
determine whether there is any genuine
and bona fide dispute regarding the
election of the committee of management
or relating to the continuance in office of
any office bearer of such committee - In
order to thwart a duly elected committee,
few erring members can create rival
elections and stake a claim before the
Registrar. In such a situation, if the