# Smt. Subodh Kanti v. Distt. Judge Unnao & Ors

- **Citation:** (2023) 3 ILRA 247
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-24
- **Case number:** Writ C No. 1350 of 2023
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-subodh-kanti-v-distt-judge-unnao-ors-49952
- **Pages:** 7

## Headnote

A. Civil Law - U.P. Panchayat Raj Act, 1947
- Section 12C - U.P. Panchayat Raj
(Settlement of Election Disputes) Rules,
1994 -
Election
Petition
-
issue
for
consideration - whether framing of issues
in an election petition is a sine qua non
prior to deciding an election petition ? -
Held - in an election petition filed under
Section 12C of the Act 1947 the issues are
248 INDIAN LAW REPORTS ALLAHABAD SERIES
to be framed by the prescribed authority
unless the prescribed authority proceeds
to dismiss the election petition on a
preliminary objection raised on behalf of
the respondents (Para 24)

Dismissed. (E-5)

List of Cases cited:

## Text

3 All. Smt. Subodh Kanti Vs. Distt. Judge Unnao & Ors.
247

10. In the present case, it is not in
dispute that certain percentage of salary
was deducted for relevant period, therefore,
amount deducted was not in dispute.
However, since a controversy was arose
before Prescribed Authority that, whether
or not employer has power to deduct the
amount as well as whether or not deduction
was legally permissible and for that parties
before
Prescribed
Authority
have
exchanged pleadings and led oral evidence
also. Prescribed Authority has entered into
arena of disputed questions and considered
pleadings and oral evidence and recorded a
finding that since undisputedly publication
was regular and respondents-workmen
were
working
regularly,
therefore,
deduction was illegal or not permissible
and proceeded to pass order against
petitioner and in favour of respondentsworkmen. Since Prescribed Authority has
entered into arena of dispute to determine
legality of deduction, therefore, it has acted
beyond its jurisdiction provided under
Section 17(1) of Act, 1955 and committed
legal error by not making reference to
Labour Court.

11. Accordingly, impugned order
dated 07.12.2022 is hereby set aside.
Prescribed Authority is directed to refer
dispute to Labour Court within a period of
two weeks from today in accordance with
provisions
of
Act,
1955
for
its
determination. The Labour Court is also
directed to conclude proceedings within a
period of six months thereafter, subject to
other business of Court.

12. Petitioner-Employer is also at
liberty to have a meeting with respondentsworkmen,
who
have
supported
their
employer during Covid-19 Pandemic, to
settle the dispute with regard to deduction
of salary even beyond lockdown period and
if possible refund a proximate money to
them.

13. So far as challenge to notification
dated
29.03.2020
is
concerned,
no
reference was made during impugned
proceedings and there is no challenge to
power under which said notification was
issued. Nothing has been brought on record
that any adverse order has been passed in
pursuance of said notification. Accordingly,
prayer
to
quash
notification
dated
29.03.2020 is hereby rejected.

14.

With
aforesaid
directions/
observations the writ petition is disposed
of.
----------
(2023) 3 ILRA 247
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.02.2023

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ C No. 1350 of 2023

Smt. Subodh Kanti ...Petitioner
Versus
Distt. Judge Unnao & Ors. ...Respondents

Counsel for the Petitioner:
Ashish Kumar Rastogi

Counsel for the Respondents:
Purusottam Awasthi, Ashish Kumar

A. Civil Law - U.P. Panchayat Raj Act, 1947
- Section 12C - U.P. Panchayat Raj
(Settlement of Election Disputes) Rules,
1994 -
Election
Petition
-
issue
for
consideration - whether framing of issues
in an election petition is a sine qua non
prior to deciding an election petition ? -
Held - in an election petition filed under
Section 12C of the Act 1947 the issues are
248 INDIAN LAW REPORTS ALLAHABAD SERIES
to be framed by the prescribed authority
unless the prescribed authority proceeds
to dismiss the election petition on a
preliminary objection raised on behalf of
the respondents (Para 24)

Dismissed. (E-5)

List of Cases cited:

1. Makhan Lal Bangal Vs Manas Bhunia & Ors
(2001) 2 SCC 652

2. Kailas Vs Nanhku & ors.(2005) 4 SCC 480

3. Kalyan Singh Chouhan Vs C. P. Joshi AIR
2011 Supreme Court 1127

4. Samar Singh Vs Kedar Nath @ K. N. Singh &
Ors 1987 (supp) SCC 663

5. Tarlok Singh Vs Municipal Corporation of
Amritsar and another (1986) 4 SCC 27

6. K Venkateswara Rao & anr. Vs Bekkam
Narasimha Reddi & Ors (1969) 1 SCR 679

7. Kulsum Vs State of U.P. & ors.2018 (8) ADJ
182

8. Uttamrao Shivdas Jankar Vs Ranjitsinh
Vijaysinh Mohite Patil (2009) 13 SCC 131

(Delivered by Hon'ble Abdul Moin, J.)

1. Heard learned counsel for the
petitioner and Shri Purusottam Awasthi,
learned counsel for the respondent no. 2.

2. The instant petition has been filed
praying for the following main relief:

"(i) Issue writ, order or direction
in nature of certiorari, this Hon'ble Court
may graciously be pleased to set aside /
quash
the
impugned
order
dated
05.01.2023 passed by the opposite party
no. 1 in revision no. 15/2022 (Murali
Prasad Verma vs Smt Subodh Kanti and
others) as contained in annexure no. 1 to
this petition."

3. The case set forth by the petitioner
is that the petitioner was declared elected as
Gram Pradhan of Village Fatehur, Block
Pargana and Tehsil Safipur, District Unnao
in the elections of the year 2021. The
respondent no. 2 was one of the candidates
in the said election. The respondent no. 2
filed an election petition before the
prescribed authority under provisions of
Section 12C of the U.P. Panchayat Raj Act,
1947 (hereinafter referred to as the Act,
1947) challenging the election of the
petitioner.
The
election
petition
was
dismissed vide the order dated 23.05.2022,
a copy of which is annexure 9 to the
petition. The respondent no. 2, being
aggrieved, filed a revision before the
learned District Judge, Unnao vide Civil
Revision No. 15 of 2022 in re: Murali
Prasad Verma vs Subodh Kanti and others
and learned revisional court vide the order
impugned dated 05.01.2023, a copy of
which is annexure 1 to the petition, set
aside the order passed by the prescribed
authority and remanded back the matter to
the prescribed authority for deciding afresh
in the light of the given directions.

4. The ground which prevailed on the
revisional court in setting aside the order of
the prescribed authority was that prior to
passing of the order dated 23.05.2022 by
the prescribed authority, no issues were
framed. In this regard learned revisional
Court has placed reliance on the judgement
of Hon'ble the Apex Court in the case of
Makhan Lal Bangal vs Manas Bhunia
and others reported in (2001) 2 SCC 652.

5. Raising a challenge to the order
impugned by which the revisional court has
remanded the matter to prescribed authority
3 All. Smt. Subodh Kanti Vs. Distt. Judge Unnao & Ors.
249
for deciding afresh on the ground of non
framing of issues, the argument is that
framing of issues is not a sine qua non to an
election petition being decided in as much
as the provisions of Civil Procedure Code
are not strictly applicable on an election
petition filed under the provisions of the
Act, 1947. In this regard reliance has been
placed on judgements of Hon'ble the Apex
Court in the case of Kailas vs Nanhku and
others reported in (2005) 4 SCC 480,
Kalyan Singh Chouhan vs C. P. Joshi
reported in AIR 2011 Supreme Court
1127, Samar Singh vs Kedar Nath @ K.
N. Singh and others reported in 1987
(supp) SCC 663, Tarlok Singh vs
Municipal Corporation of Amritsar and
another reported in (1986) 4 SCC 27 and
K Venkateswara Rao and anothers vs
Bekkam Narasimha Reddi and others
reported in (1969) 1 SCR 679.

6. Placing reliance on the aforesaid
judgments the argument is that in all the
aforesaid cases Hon'ble the Apex Court has
held that provisions of the C.P.C. are not
strictly applicable in an election petition
and consequently the order of the revisional
court whereby the matter has been
remanded to the prescribed authority
simply on the ground that no issues were
framed prior to the prescribed authority
dismissing the election petition calls for
interference by this Court.

7. On the other hand, Shri Purusottam
Awasthi, learned counsel appearing for the
respondent no. 2 contends that the
provisions of the Act 1947 read with the
rules which have been framed for deciding
of the election petition namely the U.P.
Panchayat Raj (Settlement of Election
Disputes) Rules, 1994 (hereinafter referred
to as the Rules 1994) categorically provide
the manner in which hearing of an election
petition is to take place. He contends that
this aspect of the matter has been
considered by this Court in the case of
Kulsum vs State of U.P. and others
reported in 2018 (8) ADJ 182 wherein this
Court after placing reliance on the Supreme
Court judgement in the case of Makhan
Lal Bangal (supra) as well as Uttamrao
Shivdas Jankar vs Ranjitsinh Vijaysinh
Mohite Patil reported in (2009) 13 SCC
131 has held that the prescribed authority
has to first frame issues prior to deciding of
an election petition or prior to directing for
recounting as was the case involved in the
case of Kulsum (supra).

8. Placing reliance on the judgement
of Hon'ble the Apex Court in the case of
Makhan Lal Bangal (supra) the argument
of
Shri
Purusottam Awasthi,
learned
counsel for the respondent no. 2 is that the
Apex Court has categorically held that an
election petition is like a civil trial and the
stage of framing of issues is an important
one in as much as on that day the scope of
trial of the case is determined by laying a
path on which the trial shall proceed
excluding divergence and departure. The
Apex Court has also held that the issues
shall be framed and recorded on which the
decision of the case shall depend.

9. Placing reliance on the aforesaid
observations of Hon'ble the Apex Court in
the case of Makhan Lal Bangal (supra)
the argument of Shri Purusottam Awasthi,
learned counsel for the respondent no. 2 is
that unless and until the issues were framed
by the prescribed authority on which the
election petition filed by the respondent no.
2 was to be decided, the summary and
cursory dismissal of the election petition
filed by the respondent no. 2 could not be
said to be in accordance with law and as
such the learned revisional court has not
250 INDIAN LAW REPORTS ALLAHABAD SERIES
erred in law in remitting back the matter to
the prescribed authority for framing of
issues and for deciding the election
petition.

10. Heard learned counsel for the
parties and perused the record.

11. From a perusal of record it is
apparent that upon the petitioner being
declared elected as the Gram Pradhan of
the village in question, an election petition
was filed by the respondent no. 2
challenging the election of the petitioner.
The prescribed authority, vide the order
dated
23.05.2022
without
admittedly
framing issues, dismissed the election
petition. The respondent no. 2, being
aggrieved, filed a revision and the learned
revisional court, vide order impugned dated
05.01.2023, after considering the law laid
down by the Apex Court in the case of
Makhan Lal Bangal (supra) and holding
that as no issues have been framed by the
prescribed authority prior to dismissing the
election petition, has remitted back the
matter to the prescribed authority for
passing of a fresh order.

12. The issue for consideration before
the Court is that as to whether framing of
issues in an election petition is a sine qua
non prior to deciding an election petition?

13. The said issue is no longer resintegra having been decided by a three
judges bench of Hon'ble the Apex Court in
the case of Makhan Lal Bangal (supra)
where it has been held as under:

"An election petition is like a
civil trial. The stage of framing the issues
is an important one inasmuch as on that
day the scope of the trial is determined by
laying the path on which the trial shall
proceed
excluding
diversions
and
departures therefrom. The date fixed for
settlement of issues is, therefore, a date
fixed for hearing. The real dispute
between the parties is determined, the area
of conflict is narrowed and the concave
mirror held by the court reflecting the
pleadings of the parties pinpoints into
issues the disputes on which the 'two sides
differ. The correct decision of civil lis
largely depends on correct framing of
issues, correctly determining the real
points in controversy which need to be
decided. The scheme of order XIV of the
Code of Civil Procedure dealing with
settlement of issues shows that an issue
arises when a material proposition of fact
or law is affirmed by one party and denied
by the other. Each material proposition
affirmed by one party and denied by other
should form the subject of distinct issue. An
obligation is cast on the court to read the
plaint/petition
and
the
written
statement/counter,
if
any,
and
then
determine with the assistance of the
learned counsel for the parties, the
material propositions of fact or of law on
which the parties are at variance. The
issues shall be framed and recorded on
which the decision of the case shall
depend. The parties and their counsel are
bound to assist the court in the process of
framing of issues. Duty of the counsel does
not belittle the primary obligation cast on
the court. It is for the Presiding Judge to
exert himself so as to frame sufficiently
expressive issues. An omission to frame
proper issues may be a ground for
remanding the case for retrial subject to
prejudice having been shown to have
resulted by the omission. The petition may
be disposed of at the first hearing if it
appears that the parties are not at issue on
any material question of law or of fact and
the court may at once pronounce the
3 All. Smt. Subodh Kanti Vs. Distt. Judge Unnao & Ors.
251
judgment. If the parties are at issue on
some questions of law or of fact, the suit or
petition shall be fixed for trial calling upon
the parties to adduce evidence on issues of
fact. The evidence shall be confined to
issues and the pleadings. No evidence on
controversies not covered by issues and the
pleadings, shall normally be admitted, for
each party leads evidence in support of
issues the burden of proving which lies on
him. The object of an issue is to tie down
the evidence and arguments and decision to
a particular question so that there may be
no doubt on what the dispute is. The
judgment,
then
proceeding
issue-wise
would be able to tell precisely how the
dispute was decided."
 (emphasis by the Court)

14. Likewise Hon'ble the Apex Court
in the case of Uttamrao Shivdas Jankar
(supra) has held as under:

"48. In an election petition, the
High Court acts as a Court of original
jurisdiction and the election petition is a
civil trial and the jurisdiction in such a
trial, stricto sensu cannot be said to be
appellate in nature. Clearly, the High
Court acted illegally in treating its power
only as an appellate authority and not as
an original authority for it only proceeded
to try and determine as to whether or not
the decision making process is legal. That
approach of the High court in our
considered
opinion
was
illegal
and
unjustified.

49. The High court was duty
bound to treat the matter on merits by
framing issues and thereafter calling for
production of evidence in support of their
respective cases. The High court should
have examined the veracity of the rival
claims based on the evidence produced by
the parties and should have tested the
correctness of the affidavits. The opinion of
the hand writing expert in that regard
would have been sufficient and on the basis
of the same it could be possible for the
High court to decide the entire lis between
the parties. The High Court despite being
the Court of original jurisdiction acted as a
court
of
appellate
jurisdiction
and
dismissed the petition without allowing the
parties to produce evidence in support of
their contention."

 (emphasis by the Court)

15. Considering the judgments of
Hon'ble the Apex Court in the cases of
Makhan Lal Bangal (supra) and K
Venkateswara Rao (supra) this Court in
the case of Kulsum (supra) has held as
under:

"Therefore, in view of the law laid
down by the Supreme Court in the case of
Uttamrao Shivdas Jankar (supra) and
Makhan Lal Bangal (supra), in my opinion,
the order of the prescribed authority
directing the recounting of votes without
first framing of issues is wholly illegal and
unsustainable in law and is accordingly,
set aside."

 (emphasis by the Court)

16. Thus from a perusal of the
aforesaid judgments it emerges that while
trying an election petition, the election
tribunal is required to frame issues prior to
deciding the election petition.

17. The Apex Court in the judgement
of Kailash (supra), over which much
reliance has been placed by learned counsel
for
the
petitioner
has
held,
while
considering the provisions of Section 87(1)
of the Representation of People Act, 1950
that the applicability of the procedure
provided for the trial of elections petition is
252 INDIAN LAW REPORTS ALLAHABAD SERIES
not attracted with all its rigidities and
technicalities and the rules of procedure
contained in C.P.C. apply to the trial of
election petitions under the Act 1947 with
flexibility and only as guidelines.

18. From a perusal of the provisions of
the Act 1947 more particularly Section 12C(5) it comes out that sub-section (5) of
Section 12-C of the Act 1947 has provided
that without prejudice to the generality of
the powers to be prescribed under subsection (4) of Section 12-C of the Act 1947,
the rules may provide for summary hearing
and disposal of an application under subsection (1) of Section 12-C of the Act,
1947. Subsequent thereto, the Rules 1994
have been framed which give the procedure
for hearing of the election petition.
Nowhere do the rules or Act prohibit the
election tribunal from framing issues prior
to deciding the election petition which has
been filed before it.

19. Hon'ble the Apex Court in the case
of Kalyan Singh Chouhan (supra) over
which reliance has been placed by the
petitioner, after considering the earlier
judgement of Kailash (supra), has held as
under:

"24. Therefore, in view of the
above, it is evident that the party to the
election petition must plead the material
fact and substantiate its averment by
adducing sufficient evidence. The court
cannot travel beyond the pleadings and
the issue cannot be framed unless there
are pleadings to raise the controversy on a
particular fact or law. It is, therefore, not
permissible for the court to allow the party
to lead evidence which is not in the line of
the pleadings. Even if the evidence is led
that is just to be ignored as the same
cannot be taken into consideration."

20. Thus, in effect the judgement of
Kalyan Singh Chouhan (supra) supports
the order passed by the revisional court
instead of supporting the argument of
learned counsel for the petitioner.

21. The case of Samar Singh (supra)
was a case in which the Apex Court has
held that where a complaint or an election
petition does not disclose any cause of
action it does not stand to reason as to why
the defendants of the respondents should
incur cost in wasting public time producing
evidence when the proceedings can be
disposed of on preliminary objections.

22. It is not the case of the petitioner,
from the pleadings on record, that there
were certain preliminary objections that
were raised before the prescribed authority
on which basis the election petition should
have been dismissed summarily. Moreover,
the judgement of Samar Singh (supra)
does not pertain to an election petition and
as such does not have relevance to the facts
of the instant case.

23. The judgements of Hon'ble the
Apex Court in the case of K Venkateswara
Rao (supra) and Tarlok Singh (supra) are
judgements of two Hon'ble judges and
obviously would have to give way to the
three judges judgement of Makhan Lal
Bangal (supra).

24. Keeping in view the aforesaid
discussion as well as the judgments of
Hon'ble the Apex Court in the case of
Makhan
Lal
Bangal
(supra)
and
Uttamrao Shivdas Jankar (supra) and the
judgement of this Court in the case of
Kulsum (supra), it is apparent that in an
election petition filed under Section 12C of
the Act 1947 the issues are to be framed by
the
prescribed
authority
unless
the
3 All. M/S Radhika Constructions Vs. State of U.P. & Anr.
253
prescribed authority proceeds to dismiss the
election petition on a preliminary objection
raised on behalf of the respondents.

25. Keeping in view the aforesaid
discussion, no illegality and infirmity is
found with the order impugned, as such no
interference is required in the order
impugned. Accordingly, the writ petition is
disposed of directing the prescribed
authority to proceed to decide the matter in
terms of the directions issued by the
revisional court.
----------
(2023) 3 ILRA 253
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.03.2023

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ C No. 2478 of 2022

M/S Radhika Constructions ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Mr. Shishir Chandra

Counsel for the Respondents:
C.S.C., Mr. Tushar Verma

A. Civil Law - Mining - Illegal Mining -
Uttar
Pradesh
Minor
Minerals
(Concessions) Rules, 1963 - Rule 58, 60 &
67 - Consequences of non-payment of
royalty
rent
or
other
dues-
State
Government may terminate the mining
lease after serving a notice on the lessee
to pay within thirty days of the receipt of
the notice any amount due to the State
Government if it was not paid within
fifteen days next after the date fixed for
such payment - in the instant case thirty
days from the date of notice expired on
11.05.2021 and fifteen days beyond the
said date expired on 26.05.2021, however
the order of cancellation was passed on
26.4.2021
before
the
expiry
of
the
statutory period - Rule 58 flagrantly
violated
by
the
respondents
in
cancellation of the lease - Cancellation
order set aside(Para 30)
B. Civil Law - Mining - Illegal Mining -
Uttar
Pradesh
Minor
Minerals
(Concessions) Rules, 1963, Rule 58, 60, 67
- Consequences of contravention of rules
and conditions of lease - If the allegations
are of illegal mining beyond the leased
area, the inspection report must provide
the GPS coordinates of both the inspected
area and the area beyond the lease
alleged to have been illegally mined - It
must be established that illegal mining
had, in fact, been done on area beyond the
leased area (Para 19, 23)
C. Civil Law - Illegal Mining - cancellation
of the Mining lease licenses - Violation of
Principles of Natural Justice - show cause
notice issued to the petitioner contained
only allegations of illegal mining recorded
by the inspection team - culpability of the
petitioner was decided solely on the
inspection report, however, the inspection
report
was
never
supplied
to
the
petitioner
- inquiry
proceedings
were
conducted
in
clear
violation
of
the
principles of natural justice, severely
prejudicing the petitioner's defense - No
other
evidence
or
statements
were
recorded during the inquiry, and no
documents were taken on record
-
the inspection report did not mention
when and where the inspection was
carried out, who was present, or whether
it was conducted at the location allotted
to the petitioner - there was no mention of
GPS coordinates used for identifying the
plot - There was no sufficient and cogent
material linking the petitioner to the
charge of illegal mining - cancellation
order passed by the District Magistrate,
without application of any mind at the
dictates of the higher authority i.e. of
Director,
Mining
and
Geology
-
the
grounds / defence taken by the petitioner