Allahabad High Court
Smt. Maya Devi vs Special Judge, S.C./S.T. Act, Kanpur ... on 29 January, 2002
Equivalent citations: 2002(1)AWC761, 2002 ALL. L. J. 813, 2002 A I H C 2406, 2002 ALL CJ 1 562, (2002) REVDEC 203
Author: R.R. Yadav
Bench: R.R. Yadav
JUDGMENT R.R. Yadav, J.
1. The aforesaid two writ petitions are interlinked, therefore, I propose to decide both of them by a composite order making Writ Petition No. 34859 of 2001 as a leading case.
2. The aforesaid two writ petitions are posted today for admission, but with the consent of the learned counsel for the parties I propose to decide these two petitions on merits at admission stage.
3. The brief facts necessary for disposal of the aforesaid two writ petitions are that the petitioner in the leading case Smt. Maya Devi contested election for the office of Pradhan of Village Panchayat Arshadpur Block Maitha district Kanpur Dehat along with other six candidates. The election was held on 14.6.2000, in which respondent No. 3 Kusuma Devi was declared elected Pradhan of the aforesaid village panchayat by margin of 14 votes. Smt. Kusuma Devi obtained 305 votes whereas her nearest rival candidate Smt. Maya Devi obtained 291 votes.
4. Feeling aggrieved against declaration of result, the petitioner, Smt. Maya Devi, filed an election petition before the prescribed authority under Section 12C of the U. P. Panchayat Raj Act and moved an application for recounting. The aforesaid application for recounting was allowed by the prescribed authority. Aggrieved against order for recounting, contesting respondent No. 3, Kusuma Devi, filed Writ Petition No. 2039 of 2001 before this Court. The aforesaid writ petition was dismissed by the learned single Judge of this Court on 18.1.2001. Again Smt. Maya Devi filed Writ Petition No. 20585 of 2001, which was finally disposed of at admission stage on 24.5.2001 by the learned single Judge of this Court with a direction to pass order in respect of recounting within two weeks from the date of order.
5. Pursuant to the order dated 24.5.2001 passed by this Court, the prescribed authority conducted recounting in the presence of the learned counsel for the parties and declared the petitioner Smt. Maya Devi elected in recounting by margin of one vote. It is evident from perusal of order of recounting dated 23.6.2001 (Annexure-6 to the writ petition) that at least on two votes counted in favour of Smt. Maya Devi, thumb impressions are found to be affixed which has materially affected the declaration of result in recounting, The aforesaid objection and other objections raised by Smt. Kusuma Devi were rejected by prescribed authority.
6. Aggrieved against the order dated 23.6.2001 (Annexure-6 to the writ petition) Smt. Kusuma Devi filed a revision under Sub-section (6) of Section 12C of the U. P. Panchayat Raj Act. The revisional court after analytical discussion of the material available on record set aside the order passed by the prescribed authority dated 23.6.2001 and allowed the revision on 29.8.2001 (Annexure-7 to the writ petition) remanding the case to the prescribed authority to recount the votes of the parties in the light of the observation made in the body of its order.
7. In the leading case Smt. Maya Devi questions the legality and validity of the revisional order dated 29.8.2001, whereas in connected writ petition Smt. Kusuma Devi questions the legality and validity of order dated 24.11.2001 passed by District Panchayat Raj Officer, Kanpur Dehat (Annexure-8 in that petition) whereby charge of Pradhan has been handed over to Smt. Maya Devi in pursuance of order dated 23.6.2001 passed by prescribed authority. It is pertinent to observe here that while remanding the case, the learned revisional court has restrained the respondents from interfering with the functioning of Smt. Kusuma Devi till election petition is not decided finally after recounting the votes in the light of observation made by it in the body of revisional order.
8. It is evident from the perusal of the order dated 7.11.2001 passed by this Court in leading writ petition that in the aforesaid writ petition notices were issued to the contesting respondents and till further orders of this Court, operation of the impugned order dated 29.6.2001 passed by the Special Judge Scheduled Castes/Schedule Tribes (Prevention of Atrocities Act), 1989 district Kanpur Dehat, was kept in abeyance. As a matter of fact the object of keeping the order impugned in abeyance. Annexure-7 to the writ petition, passed by respondent No. 1, was that further proceedings before the prescribed authority shall remain stayed.
9. It seems to me that in bona fide belief the District Panchayat Raj Officer Kanpur Dehat, arrived at a conclusion that in view of the stay order passed by this Court in Writ Petition No. 34859 of 2001, respondent No. 3 Smt. Kusuma Devi is not entitled to hold the office of Pradhan of Village Panchayat Arshadpur Block Maitha, therefore, he passed the impugned order Annexure-8 to the writ petition on 29.11.2001, a copy whereof is filed and marked as Annexure-8 to the connected writ petition.
10. It is contended by the learned counsel appearing on behalf of Smt. Kusuma Devi that although the election petition is still pending before the prescribed authority yet taking recourse of the ad interim stay order passed by this Court on 7.11.2001 she has been removed from the office of Pradhan of Village Panchayat Arshadpur Block Maitha, which is per se Illegal and without jurisdiction.
11. I have heard the learned counsel for the petitioner Sri A.K. Sachan as well as the learned standing counsel as well as the learned counsel appearing on behalf of Smt. Kusuma Devi. With the assistance of the learned counsel for the petitioner Sri A. K. Sachan I have gone through the order impugned passed by the prescribed authority allowing the election petition on basis of recounting of votes of all candidates. It is found by the prescribed authority during the course of recounting, that Smt. Maya Devi obtained 289 votes, Smt. Kusuma Devi 288 votes, Smt. Jai Devi wife of Ram Narain 160 votes, Smt. Jamuna Devi 67 votes. Smt. Ram Wati 65 votes, Smt. Long Devi 83 votes and 64 votes are declared invalid. I have also gone through the revisional order passed by the revisional court under Sub-section (6) of Section 12C of the U. P. Panchayat Raj Act. I have also gone through the order of District Panchayat Raj Officer (Annexure-8 to the writ petition), whereby Smt. Kusuma Devi has been removed from the office of Pradhan for which the election petition is still pending before the prescribed authority and the order passed by revisional court has not attained finality as yet.
12. In the peculiar facts and circumstances of the present case, it is held that the order passed by revisional court dated 29.8.2001 (Annexure-7 to the writ petition) is eminently Just and proper and does not require Interference under Article 227 of the Constitution. The learned revisional court has given cogent and convincing reasons in support of its order, with which I am in full agreement. The revisional court has only remanded the case for recounting in accordance with law, which does not call for interference. Ordinarily no writ is maintainable against remand order.
13. Coming to the basic question for consideration before this Court as to whether during the pendency of the election petition and before the order passed by revisional court attains finality respondent No. 3 Smt. Kusuma Devi can be removed from the office of Pradhan ignoring the mandatory provisions envisaged under Article 243O, which specifically provides that notwithstanding anything in this Constitution no election to any panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided by or under any law made by the Legislature of a State. To my mind, according to the Constitutional provisions envisaged under Article 243O of the Constitution, Smt. Kusuma Devi cannot be removed from the office of pradhan unless an election petition is filed and is finally decided,
14. The aforesaid question can be viewed from a different angle. Even according to the statutory provisions contemplated under Section 12C of the U. P. Panchayat Raj Act, an 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 Nayaya Panchayat under Section 43 cannot be called in question except by an application presented to such authority within such time in such manner as may be prescribed on the grounds which are enumerated under Section 12C of the U. P. Panchayat Raj Act. Thus, the contesting respondent No. 3 Smt. Kusuma Devi cannot be removed from the office of Pradhan unless election petition is finally disposed of by the prescribed authority.
15. As a result of the aforementioned discussion, the leading Writ Petition No. 34859 of 2001 is hereby dismissed and the order dated 29.8.2001 (Annexure-7 to the writ petition) passed by the revisional court is affirmed, whereas connected Writ Petition No. 43834 of 2001 is allowed and the order passed by the District Panchayat Raj Officer on 24.11.2001 and other consequential orders passed in pursuance thereof are hereby quashed with a direction to the prescribed authority to decide the election petition between the parties in the light of the observation made by the revisional court in its order dated 29.8.2001 (Annexure-7 to the writ petition) expeditiously, preferably within three months from the date of receipt of a certified copy of this order.
16. Cost is made easy.