Allahabad High Court
Kanhaiya Lal vs State Of U.P. And Others on 14 December, 2011
Bench: Arun Tandon
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 2
Case :- WRIT - C No. - 33673 of 2011
Petitioner :- Kanhaiya Lal
Respondent :- State Of U.P. And Others
Petitioner Counsel :- Prakash Chandra Srivastav,Deoprakash Singh,R.K.S. Nithith
Respondent Counsel :- C.S.C.,C.P. Dwivedi,Sujeet Kumar Yadav
Hon'ble Arun Tandon,J.
Heard Sri Ravi Kiran Jain, learned Senior Advocate assisted by Sri Deo Prakash Singh, learned counsel for the petitioner, Sri C.P. Dwivedi, learned counsel for private-respondent and learned Standing Counsel for State-respondents.
Petitioner before this Court is the elected Pradhan. He is aggrieved by an order of the District Magistrate, Jaunpur dated 25th May, 2011, wherein, in exercise of powers under Section 95 (1) (g) (v) of the U.P Panchayat Raj Act he has held that petitioner was under-age and disqualified from contesting election of the Pradhan and has therefore, removed him from the office.
Order of the District Magistrate is under challenge before this Court.
Complaint i.e. respondent no.4 had contested the elections of Pradhan against the petitioner and he had lost the election, an election petition has already been filed in respect of said election, wherein the issue of petitioner being under-age has specifically been raised.
Learned counsel for the petitioner submits that by initiating parallel proceedings, petitioner could not have been non-suited from the office of elected pradhan.
Even otherwise, he submits that the vary basis of the order of the District Magistrate is the high school examination mark-sheet and the age recorded therein. He submits that the mark-sheet and the age recorded therein is only a piece of evidence, which can be dispelled by other material evidence, which may be led in election petition proceedings, as may be taken in accordance with the provisions of U.P. Panchayat Raj Act.
The District Magistrate cannot enter into the aforesaid disputed issues of fact and to hold that the petitioner was under-age. It is pointed out that the petitioner had filed Parivar Register and the electoral college before the District Magistrate, wherein his age was shown as 22 years. The certificate of the Chief Medical Officer disclosed his age as 25 years. He, therefore, submits that it was a case of consideration of disputed issues of facts, which could not be considered by the District Magistrate in exercise of powers under Section 95 (1) (g) (v) of the U.P Panchayat Raj Act.
Reliance has also been placed upon the Division Bench Judgement of this Court dated 11th July, 2011 passed in Special Appeal No. 1201 of 2011 (Jitendra Prasad Yadav @ Jitendra vs. State of U.P. & others), wherein it has been held that the issue with regard to wrongful acceptance of nomination of a candidate, wherein it is alleged that the candidate concerned was under age, has to be agitated by way of election petition under Section 12-C of the U.P. Panchayat Raj Act and it is not open to the delegate of the State Government under Section 95 of the Act to exercise jurisdiction on the aforesaid issue. Reference has been made to Article 243-O (b) of the Constitution of India, whereby a bar has been placed upon the Courts in the matter of election disputes.
Learned counsel for the respondent, however, submits that since the high school mark-sheet discloses that the petitioner was under-age and therefore, disqualified on the date he had submitted his nomination form for contesting the elections. The District Magistrate has rightly held the petitioner to be disqualified from contesting the elections.
Having considered the submissions made by the learned counsel for the parties and having examined the records of the present writ petition, I am of the opinion that not only in view of the Division Bench Judgement of this Court dated 11th July, 2011 in the case of Jitendra Prasad Yadav (supra). Even otherwise, dispute issues of facts like the age of the elected candidate cannot be the cause for the District Magistrate to exercise powers under Section 95 (1) (g) (v) of the U.P. Panchayat Raj Act.
High school mark-sheet and the date of birth rerecorded therein is also piece of evidence (which may carry some weight) like the Parivar Register or the electoral college, which record a different age. Such evidence along with other evidence both oral as well as documentary has to be considered during regular election petition proceedings. The candidate can lead oral as well as documentary evidence for establishing his true age. Proceedings under Section 95 (1) (g) (v) of the U.P Panchayat Raj Act after election is over and the candidate is elected, could not be resorted to, in the facts of the present case, specifically when the election petition has already been filed raising an identical issue against the elected Pradhan.
In the totality of the circumstances as on record, this Court finds that the order passed by the District Magistrate cannot be legally sustained and is hereby quashed.
The present writ petition is allowed.
Any observations made herein above shall not prejudice any of the rights of either of the parties in the pending election petition.
Certified copy of this order shall be issued to the learned counsel for the parties by Friday i.e. 16th December, 2011 on payment of usual charges.
(Arun Tandon, J.)
Order Date :- 14.12.2011
Sushil/-
