Allahabad High Court
Mohammad Sadique vs State Of U.P. And 5 Others on 28 June, 2021
Bench: Sunita Agarwal, Sadhna Rani (Thakur)
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 39
Case :- WRIT - C No. - 13922 of 2021
Petitioner :- Mohammad Sadique
Respondent :- State Of U.P. And 5 Others
Counsel for Petitioner :- Surendra Prasad Yadav
Counsel for Respondent :- C.S.C.
Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Mrs. Sadhna Rani (Thakur),J.
Heard learned counsel for the parties and perused the record.
The petitioner herein is seeking for quashing of the certificate dated 02.05.2021 issued in the prescribed proforma in favour of respondent no.6 declaring him as an elected member of the Kshetra Panchayat.
The contention of the learned counsel for the petitioner is that initially a certificate dated 02.05.2021 had been issued in favour of the petitioner which is appended at page no.'25' of the paper book. But another certificate of the same date had been illegally issued in the name of the respondent no.6 declaring him an elected candidate.
The contention of the learned counsel for the petitioner is that after issuance of the certificate dated 2.5.2021 declaring the petitioner as winning candidate, the Returning Officer had become functus officio. The subsequent certificate in favour of respondent no.6 is liable to be cancelled.
It is contended that the dispute raised herein is squarely covered by the decision of the Division Bench of this Court in Civil Misc Writ Petition No.266 of 2006 (Smt.Kamlesh vs Mukya Nirwachan Ayuct, Rajya Nirwachan Ayog, U.P and others). The settled legal position is that after declaration of the result by the Returning Officer and issuance of a certificate of declaration in favour of the successful candidate, the Returning Officer had become functus officio.
Considering the above, we may note that the petitioner is seeking for cancellation of the election of respondent no.6, who had been issued the certificate of being an elected candidate by the Returning Officer on 2.5.2021 itself, as also the relief of declaration in his favour as a winner and elected candidate.
We cannot have any quarrel with the legal proposition propounded by the co-ordinate Bench. However, the dispute herein is factual in nature, inasmuch as, the petitioner submits that the certificate appended at page no.'27' of the paper book was issued in his name and is a valid certificate. Further issuance of certificate in the name of respondent no.6 is thus, illegal.
We may further note that the certificate appended at page no.'27' of the paper book does not bear any stamp at the relevant box of the stamp as compared to page no.'30'. Further, as dispute is regarding the subsequent issuance of certificate in favour of respondent no.6, the original record of the office of the returning officer would have to be examined, which must have been sealed. Moreover, the final relief for declaration prayed before us cannot be granted within the scope of the writ petition.
We, therefore, find it fit and proper in the facts and circumstances of the present case that the petitioner shall approach the appropriate forum, i.e Election Tribunal for seeking a proper relief.
Even the co-ordinate Bench of this Court in the aforesaid judgment, relied upon by the learned counsel for the petitioner, while answering the question of law in favour of the petitioner therein had relegated him to approach the Election Tribunal for getting appropriate relief.
Relevant observations in the said judgment is noted as under:-
"In view of the above, petition succeeds and is allowed. The certificate issued in favour of respondent no.3 declaring her as a successful candidate (Annex CA-2) is hereby quashed and consequently the earlier certificate declaring the petitioner successful stands revived. It will, however, be open to the respondent no.3 to approach the appropriate forum, i.e. the Election Tribunal for seeking appropriate remedy, if she is so advised.
A copy of this order may be issued to the learned counsel for the parties by 01.04.2006 on payment of usual charges. "
For the aforesaid, we do not propose to entertain the present petition.
The writ petition is, accordingly, dismissed on the ground of alternative remedy.
Order Date :- 28.6.2021
P Kesari
