# Vinod Kumar v. State of U.P. & Ors

- **Citation:** (2022) 4 ILRA 782
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-12
- **Case number:** Writ-C No. 1843 of 2022
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinod-kumar-v-state-of-u-p-ors-48321
- **Pages:** 8

## Headnote

Civil Law - Constitution of India, 1950 -
Article 226, 243-F, 243-K, 243-O - U.P.
Panchayat Raj Act, 1947 - Sections 5A,
5A(a), 6A, 9A, 12-C, 11B, 11D, 12A & 12BB
- Election of Gram Pradhan - petitioner
moved
Application
(U/s
5A)
-
for
disqualifying the election of respondent
no. 5 being under age - once the election
starts & culminated - the only remedy is
available to file an election petition -
hence writ petition dismissed. (Para - 30,
33, 36)

Writ Petition dismissed. (E-11)

List of Cases cited: -

## Text

782 INDIAN LAW REPORTS ALLAHABAD SERIES
of a nebulous plea, in exercise of writ
jurisdiction
under
Article
226.
Even
assuming that there is some ambiguity in
particularizing the public purpose and the
possibility of doubt cannot be ruled out, the
constitutional
Courts
in
exercise
of
jurisdiction under Article 226 or 136
should not, as a matter of course, deal a
lethal blow to the entire proceedings based
on the theoretical or hypothetical grievance
of the petitioner. It would be sound
exercise of discretion to intervene when a
real and substantial grievance is made out,
the non-redressal of which would cause
prejudice and injustice to the aggrieved
party. Vagueness of the public purpose,
especially, in a matter like this where it is
possible to take two views, is not
something which affects the jurisdiction
and it would, therefore, be proper to bear in
mind the considerations of prejudice and
injustice."

iii) Jaipur Metro Rail Corporation
Limited's case:

"31. With respect to ecological balance,
there has to be sustainable development and
such projects of immense public importance
cannot he halted. It is not the case that
requisite permissions from the Central
Government and the State Government have
not been obtained, thus, objections were
flimsy. In other petitions also pertaining to
the same Project, this Court has held that
such project of immense public importance
should not be put to halt. Thus, flimsy and
untenable objections were raised, which have
been rightly rejected after due application of
mind.
x x x x

48. On merits, we find the order of
interim stay passed by the single Bench to be
untenable, thus, we have no hesitation in
setting aside the same. Suffice it to observe
that in such cases of public importance of
Metro Rail Project, there should not be any
interim stay, rather an effort should be made
to decide the matter finally at an early date.
Staying the land acquisition proceedings is
not appropriate and would be against the
larger public interest involved in such
projects. Thus, relying upon the decision in
the case of Ramniklal N. Bhutta (supra), we
hold that in the matter of immense public
importance like the present one, the power to
grant interim stay under Article 226 of the
Constitution should not be exercised in the
normal course."

9. If considered in the light of the
ennunciation of law as referred to above, in
our opinion, the petitioners do not deserve
any relief as widening of National Highway
is a project of national importance and larger
public interest. The challenge to the
acquisition has been made by a small set of
persons affected by acquisition. The project
cannot be put on hold as any road is to be
constructed as per alighment which cannot
possibly be changed at one particular spot.

10. For the reasons mentioned above,
we do not find any merit in the present
petition. The same is, accordingly, dismissed.
----------
(2022)04ILR A782
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.04.2022

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ-C No. 1843 of 2022

Vinod Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
4 All. Vinod Kumar Vs. State of U.P. & Ors.
783
Girish Chandra Verma, Manvendra Singh

Counsel for the Respondents:
C.S.C.

Civil Law - Constitution of India, 1950 -
Article 226, 243-F, 243-K, 243-O - U.P.
Panchayat Raj Act, 1947 - Sections 5A,
5A(a), 6A, 9A, 12-C, 11B, 11D, 12A & 12BB
- Election of Gram Pradhan - petitioner
moved
Application
(U/s
5A)
-
for
disqualifying the election of respondent
no. 5 being under age - once the election
starts & culminated - the only remedy is
available to file an election petition -
hence writ petition dismissed. (Para - 30,
33, 36)

Writ Petition dismissed. (E-11)

List of Cases cited: -

1. Andhra Pradesh St. Financial Corporation Vs
GAR Re-Rolling Mills & ors.(AIR 1994 SC 2151),

2. Mohd. Yunus Vs St. of UP & ors.(WP (MS) No.
14674/2021, decided on Dt. 15.07.2021),

3. Srimati Sarita Devi Vs St. of UP & ors.(CMWP
No. 56318/2010 decided Dt. 28.10.2010),

4. Smt. Shyam Dulari Devi Vs St. of UP - AIR
2005 Allahabad 388)

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. Heard Shri Girish Chandra Verma,
Advocate assisted by Shri Vinay Kumar
Verma, learned counsel for the petitioner
and Shri Devansh Bhardwaj, learned
Additional Chief Standing Counsel for the
State.

2. The present petition has been filed
alleging that respondent no.5 has been
illegally elected as Gram Pradhan. It is
stated that notification for holding election
of Gram Pradhans in the State of U.P. was
issued by the Election Commission in the
year 2021 fixing various dates for the
proposed
election.
The
election
was
scheduled to be held on 19.04.2021. It is
stated that the petitioner as well as other
contesting
candidates
filed
their
nominations
for
election
of
Gram
Panchayat - Poore Dhadhu. Respondent
no.5
also
filed
his
nomination
for
contesting the election of Gram Panchayat
on 07.04.2021. The said application was
appended
with
an
affidavit
dated
06.04.2021 wherein respondent no.5 had
indicated his age as 21 years, however, as
per the school records, the date of birth of
respondent no.5 is 14.09.2000 and thus,
respondent no.5 was not aged 21 years on
the
date
of
election,
however,
the
nomination
of
respondent
no.5
was
accepted by Assistant District Election
Officer.

3. It is further on record that the
petitioner and 12 other candidates contested
the election and respondent no.5 was
declared elected. In short, the submission is
that respondent no.5 could not have
participated in the election as he was under
age and thus, his election was bad in law. It
is argued that the acceptance of his
nomination form was clearly erroneous.

4. The present petition has been filed
with the following two prayers:

"i. issue a writ, order or direction in
the nature of mandamus commanding the
opposite parties no.2 to 4 to declare the
election of the opposite party no.5 for the
post of Gram Pradhan Gram Panchayat -
Poore Dhadhu held on 19.04.2021 is void
ab initio as the opposite party no.5 was
disqualified.

ii. issue a writ, order or direction in
the nature of mandamus commanding the
opposite parties no.2 & 3 to refer the
objection/application filed by the petitioner
784 INDIAN LAW REPORTS ALLAHABAD SERIES
U/S 5-A, 9-A, red with Article 243-F of the
Constitution of India Us 6-A to the
prescribed authority for disposal of the
same. Further directions are to be issued to
the opposite party no.4 who is the
prescribed authority for taking decision
expeditiously within the time fix by this
Hon'ble Court."

5. At the very outset, learned counsel
for the petitioner argues that he is not
pressing the writ petition insofar as it
relates to prayer no.1 and confines his
prayer to prayer no.2 made in the writ
petition.

6. Learned counsel for the petitioner
argues
that
Article
243K
of
the
Constitution of India provides for election
of the Panchayats to be held under the
superintendence, direction and control of
the State Election Commission. In terms of
the mandate casted by the Constitution,
specific provisions have been incorporated
under
the
U.P.
Panchayat
Raj
Act
(hereinafter referred to as 'the Act') of
elections to the Panchayats as detailed in
Chapter II A and III-A of the Act.

7. He places reliance on Section 5A of
the said Act to impress this Court that the
persons as defined under Section 5A are
disqualified for being chosen as a Pradhan
or a Member of the Gram Panchayat and
the proviso to Section 5A(a) of the Act
specifically provides that a person would
be disqualified if he has not attained the
age of 21 years.

8. Learned counsel for the petitioner
further places reliance on Section 6A of the
Act, which confers the power on the
prescribed authority to decide any question,
which arises out of a contention that the
person has incurred disqualification to be
elected as a Pradhan or a Member of the
Gram Panchayat.

9. In the light of the mandate of
Section 6A of the Act, it is argued that the
petitioner
had
filed
an
appropriate
application after the election was over and
in terms of the mandate of Section 6A of
the Act, the matter is to be decided by the
prescribed authority, which is not being
done.

10. Learned counsel for the petitioner
has drawn my attention to the provisions of
Section 9A of the Act, which provides for
the persons who are eligible to vote and
tried to impress that the person who has not
completed the age of 21 years is neither
eligible to vote nor can be said to be
qualified to be elected as a Member of
office bearer of the Gram Panchayat.

11. He has also drawn my attention to
Article 243F of the Constitution of India to
argue that the person who has applied for
being elected as a Member of the Gram
Panchayat would be disqualified if he has
not attained the age of 21 years. The
petitioner places reliance on Annexure - 2,
the form filled by respondent no.5, to argue
that respondent no.5 had deliberately not
disclosed his date of birth in the said form.

12.

Learned
Additional
Chief
Standing Counsel on the other hand places
reliance on Section 12C of the Act to argue
that all the questions pertaining to the
election can be questioned by presenting an
application to the authority and challenging
the election.

13.

Learned
Additional
Chief
Standing Counsel further argues that even
in terms of the mandate of Article 243O,
there is a specific bar to challenge any
4 All. Vinod Kumar Vs. State of U.P. & Ors.
785
election except by an election petition to be
presented before such an authority, as may
be provided for under the law. Thus, in the
light of the said, he argues that the
petitioner for the relief claimed is liable to
be dismissed.

14. In rejoinder the learned counsel
for the petitioner argues that specific
mandate of the provisions of Section 5A,
Section 6A and Section 9A confer a
mandatory obligation upon the prescribed
to decide the question pertaining to
disqualification. He argues that although
the remedy of challenging the application is
available under Section 12C of the Act, the
petitioner has two remedies and he has the
right to elect one of the said remedies and
the petitioner has chosen to approach the
prescribed
authority
by
filing
the
application, which he bound to decide in
terms of the mandate of Section 6A of the
Act.

15. It is argued that the petitioner has
a right to elect a remedy that he chooses to,
wherever two remedies are provided in any
statute. In support of the said argument, he
places reliance on the judgment of the
Hon'ble Supreme Court in the case of
Andhra
Pradhesh
State
Financial
Corporation v. GAR Re-Rolling Mills &
Ors. - AIR 1994 SC 2151 wherein the
Hon'ble Supreme Court had considered the
powers of the Financial Corporation
constituted under the State Financial
Corporation Act, 1951 in respect of their
remedies available for recovery of the dues
under Sections 29 & 31 and in view of that
context, the Hon'ble Supreme Court had
ordered that both the remedies were
available and it was upon the Financial
Corporation to have elected either of the
said remedies.

16. He further places reliance on the
judgment of this Court Dated 15.07.2021
rendered in Writ Petition No.14674 (MS)
of 2021 (Mohammad Yunus v. State of
U.P. & Ors.) wherein this Court had
permitted the petitioner therein to file an
appropriate application and the prescribed
authority was directed to take a decision
thereupon in terms of Section 6A of the
Act.

17. He further places reliance on the
judgment of this Court in the case of
Srimati Sarita Devi v. State of U.P. & Ors.
- Civil Misc. Writ Petition No.56318 of
2010 decided on 28.10.2010 wherein this
Court was considering the issue as to
whether shiksha mitra would fall within the
definition of a person holding the office of
profit.

18. He lastly relies upon the
judgment of this court in the case of Smt.
Shyam Dulari Devi v. State of U.P. - AIR
2005 Allahabad 388 wherein this Court
had held that such disputes pertaining to
the election can be raised only by filing an
election petition under Section 12C of the
Act.

19. In the light of the submissions
made at the Bar, this Court is to consider
whether the prayer made by the petitioner
for directing the prescribed authority to
decide the objections filed under Section
5A of the Act is to be granted more so in
view of the fact that the elections have
already come to an end.

20. The documents on record bears
that the election petition has already been
filed, although not by the petitioner by a
third person namely Mahendra Kumar,
which is pending consideration.
786 INDIAN LAW REPORTS ALLAHABAD SERIES

21. Before adverting to the disputes
raised in the present petition, it is essential
to see the scheme of Chapter - II A and
IIIA of the Act.

22. Chapter II A of the act provides
for disqualification of members of gram
panchayat and electoral rolls, etc.

23. Section 5A elaborates the
disqualifications elaborated for persons
desirous of being chosen as pradhan or a
member of gram panchayat. Section 5A(a)
is quoted hereinbelow:

"5-A. Disqualification of membership
- A person shall be disqualified for being
chosen as, and for being, the pradhan or a
member of a Gram Panchayat, if he -

(a) is so disqualified by or under any
law for the time being in force for the
purposes
of
elections
to
the
State
Legislature;

Provided that no person shall be
disqualified on the ground that he is less
than 25 years of age, if he has attained the
age of 21 years

..................."

24. Section 6A of the Act confers the
powers on the prescribed authority to
decide
any
challenge
regarding
disqualification incurred under Section 5A.
Section 6A reads as under:

"6-A. Decision on question as to
disqualification.- If any question arises as
to whether a person has become subject to
any disqualification mentioned in Section
5-A or in sub-section (1) of Section 6, the
qu3stion shall be referred to the prescribed
authority for his decision and his decision
shall, subject to the result of any appeal as
may be prescribed, be final."

25. Section 9 of the said chapter
mandates for preparation of electoral roll
for each territorial constituencies.

26. Chapter III A was inserted in the
Act by virtue of amending Act No 9 of
1994 and provides for Pradhan and
elaborates the manner of electing the
Pradhan.

27. Section 11B of the Act provides
for election of Pradhan. Section 11D of the
Act makes certain further prohibitions in
respect of the persons who are seeking
election as a Pradhan. Section 12A of the
Act provides for the manner of election to
the office of Pradhan or a Member of Gram
Panchayat and provides that they shall be
elected through a secret ballot. Section
12BB confers the power of superintendence
of
election
on
the
State
Election
Commission and Section 12C of the Act
specifically provides for challenge to the
person appointed as Pradhan or a Member
of
Gram
Panchayat
and
specifically
prohibits that the same shall not be called
in question except by an application
presented to such authority within such
time and the manner as may be prescribed
on the grounds as laid down under Section
12C of the Act.

Section 12C of the Act is quoted
herein below:

"12-C. Application for questioning
the elections - (1) The election of a person
as Pradhan or as member of a Gram
Panchayat 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
4 All. Vinod Kumar Vs. State of U.P. & Ors.
787
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 inducing -

(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 excommunication 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) The application under sub-section
(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 candidate
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
of the following grounds, namely -

(a) that the prescribed authority has
exercised a jurisdiction not vested in it by law;
788 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."

28. From the scheme of the two
chapters that is Chapter II A and Chapter
III A it is clear that the Chapter II A of the
Act can be termed as a step prior to holding
of
the
elections
and
provides
for
disqualification under Section 5A in respect
of persons who are desirous of being
chosen as Pradhan or a Member of Gram
Panchayat with powers being conferred on
prescribed authority for deciding any
question
pertaining
to disqualification
under Section 6 A. whereas Chapter III A
provides for manner of holding elections.

29. In the light of the scheme of two
chapters
as
elaborated
above,
the
submission of counsel for the petitioner
cannot be accepted as it would provide for
incongruity in between the two remedies
provided under the two chapters.

30. Scheme of Chapter II A is clear
and makes provisions for decision on all
the disputes, which arise prior to election
being held, in terms of the mandate of
Section 6A of the Act whereas in terms of
Chapter III-A, once the election process
starts and culminates, the challenge to the
election can be done only by virtue of
preferring an election petition under
Section 12C of the Act, to clarify, the
powers exercised by prescribed authority
prior to holding of the elections pertaining
to disqualifications are to be decided in
terms of the mandate of Section 6A of the
Act, however, once the election process
starts any challenge to the election can take
place only by filing an election petition
under Section 12C of the Act.

31. If the submission of learned
counsel for the petitioner is accepted to the
effect that two remedies are available to
any person to challenge the election it
would result in incongruities, which on the
face of the scheme of the Act does not
appear to be acceptable. It is well settled
that any interpretation which results in
absurdities and does not lead to harmonious
interpretation is to be avoided.

32. The interpretation as recorded
above is also in consonance with the
mandate
of
Article
243O
of
the
Constitution
of
India.
Any
other
interpretation especially interpretation as
argued by counsel for the petitioner would
be clearly in conflict with mandate of
Article 243O of the Constitution of India.

33. The other submission of counsel
for the petitioner that neither now he is a
4 All. Smt. Fatma Kubra Vs. Addl. Commissioner Administration Ayodhya & Ors.
789
stop from filing an election petition as
being beyond limitation and thus the
petitioner's application under Section 5A of
the Act should be decided, cannot be
accepted in view of the findings recorded
by me hereinabove to the effect that the
only recourse available after the elections
are held is to file an election petition as
prescribed under Section 12C of the Act.

34. The judgment in the case of
Mohammad
Yunus
(supra)
does
not
consider the scheme of the Act and intent
of Section 12C of the Act and Article 243O
of the Constitution of India, thus, the same
cannot benefit the petitioner in any manner.

35. The judgment in the case of
Srimati Sarita Devi (supra) also does not
go into the question of available forum for
challenging the election and only decides
the issue of "office of profit" and thus
would not have any bearing on the present
case.

36. The judgment in the case of Smt.
Shyam Dulari Devi (supra) although does
not consider the issue of Chapter II-A and
Chapter III-A in detail, however, notices
the bar created by virtue of Article 243O of
the Constitution of India and Section 12C
of the Act and unequivocally holds that the
remedy is preferring election petition under
Section 12C of the Act when the occasion
to challenge the election arises.

37. The judgment in the case of
Andhra
Pradesh
State
Financial
Corporation (supra) will not have any
bearing on the case inasmuch as the
remedies available under the Act are
twofold; one which arise prior to holding of
the election and second which is provided
for after the elections are held. Thus, the
two
remedies
do
not
operate
simultaneously and in the same sphere, as
such, the said judgment has no applicability
in the present case.

38. In view of the findings as
recorded above and considering the scheme
of the Act, the relief as pressed by the
counsel for the petitioner cannot be
granted. The petition lacks merit and is
accordingly dismissed.
----------
(2022)04ILR A789
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.04.2022

BEFORE

THE HON'BLE JASPREET SINGH, J.

Writ-C No. 2095 of 2022

Smt. Fatma Kubra ...Petitioner
Versus
Addl.
Commissioner
Administration
Ayodhya & Ors. ...Respondents

Counsel for the Petitioner:
Amitesh Pratap Singh, Meera Jain

Counsel for the Respondents:
C.S.C., Aftab Ahmad, Mohan Singh, Yogesh
Singh

A. Civil Law - U.P. Zamindari Abolition &
Land Reforms Act, 1950 - Section 143 -
Scope of power - in exercise of power u/s
143, the Sub-Divisional Officer can only
give a declaration that the land, of which a
declaration is sought, is being used for
purposes other than agriculture but it do
not give a right to the Sub-Divisional
Officer to delete the names of the
recorded tenure-holders or to change the
land use in such a manner that it can be
recorded as an 'abadi' land in Category
6(2) (Para 25, 35)

B. Civil Law -U.P. Zamindari Abolition &
Land Reforms Act, 1950 - Section 143 -