# Usha v. State Election Commissioner Panchayat U.P. LKo. & Ors

- **Citation:** (2021) 6 ILRA 199
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-05-24
- **Case number:** Misc. Single No. 10970 of 2021
- **Bench:** Ravi Nath Tilhari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/usha-v-state-election-commissioner-panchayat-u-p-lko-ors-47017
- **Pages:** 4

## Headnote

(a) Election - U.P. Panchayat Raj Act, 1947
- Section 12-H - If a person was elected
against casual vacancy caused due to
voidance
of
the
election
of
earlier
Pradhan, the term would be for the
residue of the term of Gram Panchayat.
(Para 18)

Writ Petition Rejected. (E-8)
200 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:-

## Text

6 All. Usha Vs. State Election Commissioner Panchayat U.P. Lko. & Ors.
199
raise his objections before the appropriate
forum, however, since the matter is not
before this Court, hence, this Court refrains
from making any observations in respect
thereto.

131. Having considered the rival
submssions and from perusal of the record,
this Court is of the considered opinion that as
far as the merit of the order dated 02.11.2019
is concerned, the same does not suffer from
any error apparent on the face of the record
nor the finding recorded by the Deputy
Registrar in the said impugned order can be
termed to be perverse or the conclusion
arrived at is such that any prudent person
could not arrive at such a conclusion, hence,
this Court is not persuaded to intervene in the
matter. Accordingly, this Court is not inclined
to interfere with the impugned order.

132. In view of the aforesaid, this Court
does not find any merit in the instant petition
and the same is dismissed. In the facts and
circumstances, there shall be no order as to
costs.

Conclusions:-

133.

For
the
detailed
reasons
incorporated hereinabove;

(i) Writ Petition No. 9735 (MS) of 2020
(Dr.Dheeraj Singh Vs. State of U.P.
Through Addl. Chief Secretary/Principal
Secretary Finance & Others) shall stand
allowed.

(ii) Writ Petition No. 4515 (MS) of
2020 (Arya Pratinidhi Sabha U.P. Through
Pradhan Devendra Pal Verma and Another
Vs. State of U.P. Through Addl. Chief
Secretary, Institutional Finance and Others)
shall stand dismissed, however, in both cases
there shall be no order as to costs.

134. The party shall file computer
generated copy of order downloaded from the
official website of High Court Allahabad, self
attested by it alongwith a self attested identity
proof of the said person (s) (preferably
Aadhar Card) mentioning the mobile number
(s) to which the said Aadhar Card is linked,
before the concerned Court /Authority
/Official.

135. The concerned Court /Authority
/Official shall verify the authenticity of the
computerized copy of the order from the
official website of High Court Allahabad and
shall make a declaration of such verification
in writing.
----------
(2021)06ILR A199
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.05.2021

BEFORE

THE HON'BLE RAVI NATH TILHARI, J.

Misc. Single No. 10970 of 2021

Usha ...Petitioner
Versus
State Election Commissioner Panchayat
U.P. LKo. & Ors. ...Respondents

Counsel for the Petitioner:
Vijay Shankar Trivedi, Nitya Nand Mani Tripathi

Counsel for the Respondents:
Rakesh Kumar Chaudhary

(a) Election - U.P. Panchayat Raj Act, 1947
- Section 12-H - If a person was elected
against casual vacancy caused due to
voidance
of
the
election
of
earlier
Pradhan, the term would be for the
residue of the term of Gram Panchayat.
(Para 18)

Writ Petition Rejected. (E-8)
200 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:-

1. Savitri Devi Vs. St. of U.P. & ors. 2017 (124)
ALR 863: 2017 (136) RD 328 (Alld) (followed)

(Delivered by Hon'ble Ravi Nath Tilhari, J.)

1. As per the office report, one of the
defects pointed out at serial No.1 is that the
power has not been signed by one of the
counsels for the petitioner. The power has not
been signed by Shri Nitya Nand Mani
Tripathi, Advocate. The power has been
signed only by Shri Vijay Shankar Trivedi,
Advocate.

2. Shri Nitya Nand Mani Tripathi,
Advocate
appears
through
video
conferencing and submits that due to
inadvertence, the Vakalatnama could not be
signed by him. He submits that he would
argue the matter as holding brief of Shri
Vijay Shankar Trivedi. He is permitted to
argue the matter.

3. By means of this writ petition, the
petitioner has prayed for the following main
relief:-

"Issue a writ order or direction in the
nature of Mandamus commanding the
opposite parties not to give the Oath/ charge
for the post of Gram Pradhan of Village
Panchayat Naseerpur Chhitauna, Block
jahangirganj,
Tehsil
Aalapur,
District-
Ambedkar Nagar to the opposite party No.5
and not to allow her to function on the
aforesaid post of Gram Pradhan."

4. Learned counsel for the petitioner
submits that in the elections held for the post
of Gram Pradhan in the year 2015 Smt.
Seema Pandey was declared elected on
13.12.2015. Her election was challenged by
the petitioner in an election petition Case
No.2002/2016 under Section 12-C of the U.P.
Panchayat Raj Act, 1947 which was allowed
by the Sub-Divisional Officer, Ambedkar
Nagar vide order dated 12.11.2018 whereby
the election of the post of Pradhan, dated
13.12.2015, was declared null and void.
Subsequently, election for the post of
Pradhan was held again in the year 2019, in
which the petitioner was declared as the
elected Pradhan. His submission is that as the
petitioner took charge on 7.8.2019, her period
of five years, would come to an end on
6.8.2024 and consequently no election, for
the post of Pradhan of the concerned Village
Panchayat could be legally held in the year
2021, i.e., the present elections.

5. Learned counsel for the petitioner
submits that the petitioner has filed Writ
Petition No.10103 of 2021 (M/S) to quash the
election scheduled for 29.04.2021 and to
allow the petitioner to continue on the post
for Gram Pradhan upto 06.08.2024, which is
pending before this Court and as in the
meantime election were held in which
Opposite Party No.5 was declared elected,
the present petition has been filed for the
relief that the opposite party No.5 be not
administered oath and be not allowed to
function as Pradhan.

6. Sri Raj Bux Singh, learned
Additional Chief Standing Counsel has
raised a preliminary objection that in view
of the pendency of Writ Petition No.10103
of 2021 (M/S), in which the same question
has been agitated by the petitioner, the
present writ petition is not maintainable as
in effect and substance this would be the
second writ petition.

7. In rebuttal, learned counsel for the
petitioner submits that the declaration of
result in favour of opposite party No.5 has
given fresh cause of action to maintain this
writ petition.
6 All. Usha Vs. State Election Commissioner Panchayat U.P. Lko. & Ors.
201

8. Ms. Shreya Chaudhary, Advocate
holding brief of Shri Rakesh Kumar
Chaudhary,
learned
counsel
for
the
opposite party Nos.1 & 2, has submitted
that after the election of the year 2015 was
set side in the election petition, the byelection was held in the year 2019 in which
the petitioner was elected, not for a period
of five years but for the remaining period
of the Gram Panchayat.

9. I have considered the submissions
advanced by the learned counsels for the
parties and perused the material on record.

10. The preliminary objection to the
maintainability of the present writ petition
as raised by the learned State Counsel is
devoid of any merit in as much as Writ
Petition No.10103 of 2021 (M/S) was filed
against the election process and voting
which was scheduled for 29.4.2021 and by
that time as election was not held the relief
as prayed in the present writ petition could
not be asked for in the earlier writ petition.
Declaration of result of election is a fresh
cause of action. The ground of challenge as
in the present writ petition might also be
the ground of challenge in the earlier writ
petition but on the basis thereof it cannot be
held that the present is the second writ
petition on the same subject matter. The
earlier writ petition is pending in which the
legality or sustainability of the ground of
challenge has yet not been tested.

11. I therefore proceed to decide the
present writ petition considering the ground
of challenge as raised herein, overruling the
preliminary objection.

12. The election of Pradhan for the
concerned village Panchayat was earlier
held in the year 2015, but was declared
void by order dated 12.11.2018 passed by
the Prescribed Authority in the election
petition. Thereafter, the election was held
in the year 2019 in which the petitioner was
elected as Pradhan and administered oath
on 7.8.2019.

13. The short question is as to what is
the term of the petitioner as Pradhan when
elected in the elections held in 2019,
consequent upon setting aside of the
elections held in 2015.

14. The election of Pradhan held in
2019 in which the petitioner was declared
elected, was a by-election, to fill the
vacancy caused due to declaration of the
election of the earlier Pradhan as void, in
the election petition. The vacancy for
which election was held in 2019 was a
casual vacancy. The certificate issued by
the State Election Commission annexed as
Annexure No.2 to the petition, clearly
demonstrates that the petitioner was elected
in by-elections.

15. Section 12-H of the U.P.
Panchayat Raj Act, 1947 ( in short referred
to as " Act, 1947), provides as under:-

"If a vacancy in the office of the
Pradhan, or a member of a Gram
Panchayat arises by reason of his death,
removal, resignation, voidance of his
election or refusal to take oath of office, it
shall be filled before the expiration of a
period of six months from the date of such
vacancy, for the remainder of his term in
the manner, as far as may be, provided in
Sections 11-B, 11-C, or 12, as the case may
be:

Provided that if on the date of
occurrence of such vacancy the residue of
the term of the Gram Panchayat is less
than six months, the vacancy shall not be
filled."
202 INDIAN LAW REPORTS ALLAHABAD SERIES

16. Section 12-H of the Act, 1947,
clearly provides that if a vacancy in the
office of the Pradhan arises by reason of his
death, removal, resignation, voidance of his
election or refusal to take oath of office, it
shall be filed before the expiration of six
months from the date of such vacancy, for
the remainder of the term of the Gram
Panchayat, provided that, if on the date of
occurrence of such vacancy the residue of
the term of Gram Panchayat is less that six
months, the vacancy shall not be filled. In
view of this provision, if vacancy is caused
due to voidance of election of a Pradhan
the same shall be filled for the residue of
the term of the Gram Panchayat, if it is not
less than six months on the date of
occurrence of vacancy.

17. In Savitri Devi Vs. State of U.P.
and others 2017 (124) ALR 863: 2017
(136) RD 328 (Alld), this Court has held as
under:

" 4. It is noteworthy that the existing
vacancy is a casual vacancy which falls
under section 12-H of U.P. Panchayat Raj
Act, 1947 and has to be filled by regular
election as provided under section 11-B of
the Act. Section 12-H puts a mandate that
such vacancies shall be filled before
expiration of the period of six months from
the date of occurrence of vacancy. Further
the elected candidate would be entitled to
continue for the remainder of the term in
office of the Pradhan. The proviso to
section 12-H, however, says that in case,
the residue of the term is less than six
months such vacancy shall not be filled by
election. Section 12-J, however, provides
for making temporary arrangement by
nomination
of
a
member
of
Gram
Panchayat to discharge the duties and
exercise the powers of Pradhan until
vacancy is filled up."

18. The question framed in Paragraph
13, is answered, that, as the petitioner was
elected against casual vacancy caused due
to voidance of the election of earlier
Pradhan, the petitioner's term would not be
five years, but would be for the residue of
the term of Gram Panchayat.

19. In view of the aforesaid, the
submission made by learned counsel for the
petitioner that the petitioner's term would
come to an end in the year 2024 has no
substance and is rejected. The term of the
petitioner as Pradhan came to an end with
the expiry of the term of the Gram
Panchayat.

20. The writ petition is devoid of
merit and is hereby dismissed.
----------
(2021)06ILR A202
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.06.2021

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE AJAI KUMAR SRIVASTAVA-I, J.

Misc. Bench No. 10971 of 2021

Kamal Daniel & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Raghvendra Pandey, Viksit Arora

Counsel for the Respondents:
G.A.

(a) Criminal Law - Simultaneous First
Information Report - code of Criminal
Procedure, 1973 - Section 154 - Due to
technical lapses two FIRs had been registered
by the police station. The Court observed that
since the technical problem has come to be
pointed out at a nascent stage of investigation