ANIL KUMAR vs SUCHITA - 2009 Supreme(All) 2479

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2009 Supreme(All) 2479

[2009(6) ADJ 24]
ALLAHABAD HIGH COURT
BEFORE : PANKAJ MITHAL, J.
ANIL KUMAR ....Appellant
Versus
Smt. SUCHITA ....Respondent
(First Appeal No. 326 of 2008 with Civil Misc. Writ Petition No. 11644 of 2007, decided on 2nd July, 2009)

Advocates:
Counsel :
K.N. Tripathi and N.K. Pandey for the Appellant; Ravi Kiran Jain, D.V. Singh, Zafar Naiyer, Addl. Advocate General, R.C. Srivastava, S.C. for the Respondents.

Headnote:(A) Election—Post of Adhyaksha/President of Zilla Panchayat—Election of elected respondent, challenged on the ground that she was not qualified to hold post as she had not completed 21 years of age, which is minimum prescribed for the purpose—Respondent at the time of filing of her nomination on affidavit, disclosed her age to be 28 years—Nomination was made in December, 2005 and if her statement on affidavit is taken to be correct, her date of birth would fall in year 1977, and not in year, 1984—Thus, such a huge variation as per her own showing by respondent, ex facie establishes her falsehood—Date of birth of respondent, continued to be recorded as 9.6.1986 since 1991 uptil filing of election petition—Thereafter, in a calculated move date of birth was got changed in all three school/colleges—Held, error committed by Courts below in holding 3.7.1984 to be date of birth of respondent—Her actual date of birth was 9.6.1986 as had appeared in all the three school/college registers, and unamended High School certificate of year, 2002—Accordingly, on date of nomination, i.e., 31.12.2005, and on date of declaration of result, i.e., 7.1.2006, she was only aged about 19 and half years—And, as such, was disqualified in view of Section 18-C of U.P. Kshetra Panchayat and Zilla Panchayat Adhiniyam, from contesting and holding post of Adhyaksha of Zilla Panchayat—Therefore, her election was void and set aside. [U.P. Kshetra Panchayat and Zilla Panchayat Adhiniyam, 1961—Section 18-C]. [Paras 35, 36, 40, 54, 55 and 58]
       (B) U.P. Kshetra Panchayat and Zilla Panchayat Adhiniyam, 1961—Sections 18-C and 27—U.P. Zilla Panchayats (Election of Adhyaksha and Up-Adhyaksha and Settlement of Election Disputes) Rules, 1994—Rules 33 to 47—Constitution of India—Articles 243-K(4), 243-O, 237 and 264-B—Constitutional validity of provisions of Act of 1961 and Rules of 1994—Existing provisions of Act and Rules are not beyond legislative competence of State Legislative—And, as such, cannot be termed as beyond powers—Neither any of provisions of Act are repugnant to Article 243-K(4) of Constitution, nor any of Rules, suffers from excessive delegation or legislative competence. [Paras 13, 20 and 21]
       (C) U.P. Kshetra Panchayat and Zilla Panchayat Adhiniyam, 1961—Sections 18-C and 27—U.P. Zilla Panchayats (Election of Adhyaksha and Up-Adhyaksha and Settlement of Election Disputes) Rules, 1994—Rules 33 to 47—Disqualification of candidate existed at the time of nomination—Even then election petition under Rule 33 is maintainable—And, election petition as filed by appellant was not barred by Section 27(2)(c) of Act. [Paras 13, 30 and 37]

JUDGMENT

Hon’ble Pankaj Mithal, J.—“Politics becomes dirty when politicians behave immorally”.

—His Holiness The Dalia Lama.

Indian democracy is considered to be the largest in the world and it is flourishing for the last 60 years. Nonetheless, it is not a very healthy democracy, though many may not agree. Lack of morality of the people connected with public life is the cause for the present litigation.

This appeal and the writ petition were tagged together by an earlier order of the Court and as such came-up for hearing before me in the weekly cause list.

The appeal is being treated to be the leading case with the consent of the parties.

Facts :

2. The facts leading to this litigation in nutshell may be summarised as under :

In the Zila Panchayat, Varanasi there are 39 members including the appellant Anil Kumar and the respondent Smt. Suchita Patel, who were declared elected as members on 25.10.2005 from Bada Gaon 4 and Kashi Vidhyapeeth 5 areas respectively.

The elections for the post of Adhyaksha/President of the Zila Panchayat, Varanasi were notified by the Election Officer/District Magistrate, Varanasi on 20.12.2005 which notification was published in the daily newspaper dated 21.12.2005. The post/seat was reserved for backward class. The last date for nomination was 31.12.2005. Four members of the Zila Panchayat filed nominations including the appellant Anil Kumar and the respondent Smt. Suchita Patel. The other two members withdrew their nominations. Thus, leaving the appellant Anil Kumar and the respondent Smt. Suchita Patel only in the fray. The voting took place on 7.1.2006 and all the 39 members voted. Appellant Anil Kumar received 19 votes whereas Smt. Suchita Patel secured 20 votes and as such was declared elected by a margin of one vote only.

3. The election of the respondent Smt. Suchita Patel as Adhyaksha of the Zila Panchayat, Varanasi was challenged by some electors i.e. Sudha Singh and others by filing a writ of quo warranto being writ petition No. 13606 of 2006 on the ground that she is not qualified to hold the post as she had not completed 21 years of age which is the minimum prescribed for the purpose. Another writ petition No. 31458 of 2006 was filed by one another elector Iqbal to the same effect. Both these petitions were got dismissed as not pressed on 4.4.2008.

4. In the meantime, the appellant Anil Kumar on 4.2.2006 filed an election petition No. 11 of 2006, Anil Kumar v. Smt. Suchita Patel, under Rule 33 of Zila Panchayat (Election of Adhyaksha and Upadhyaksha and Settlement of Election Disputes) Rules, 1994 (for short the Rules hereinafter). The said election petition was filed precisely on the allegations that the date of birth of the respondent Smt. Suchita Patel as recorded in the High School certificate of the year 2002 is 9.6.1986 and, therefore, on the date of nomination or on the date of election, she had not completed 21 years of age which is the minimum prescribed under Section 18-C of the Uttar Pradesh Kshetra Panchayat and Zila Panchayat Adhiniyam, 1961 (for short the Act hereinafter) and, therefore, her election is void and is liable to be set aside and the appellant is entitled to be declared as duly elected. The respondent Smt. Suchita Patel contested the election petition and filed her written statement dated 31.5.2006. In the written statement the respondent Smt. Suchita Patel basically contended that she was fully qualified to contest the election for the post of Adhyaksha as she was more than 21 years of age at the time of filing her nomination papers. She accepted that she had passed her High School examination in the year 2002 of the Madhyamik Shiksha Parishad, Uttar Pradesh but submitted that the date of birth recorded in the High School certificate is of no consequence. The entry of age in the electoral roll is conclusive wherein she is recorded to be 28 years of age. She is recorded as voter in the electoral rolls of Gram Panchayat, Chitaipur, Block Kashi Vidhyapeeth, Distri

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2009 Supreme(All) 2479

[2009(6) ADJ 24]ALLAHABAD HIGH COURTBEFORE : PANKAJ MITHAL, J.ANIL KUMAR ....AppellantVersusSmt. SUCHITA ....Respondent(First Appeal No. 326 of 2008 with Civil Misc. Writ Petition No. 11644 of 2007, decided on 2nd July, 2009)

Cases Referred (3)

[2009(6) ADJ 24]
ALLAHABAD HIGH COURT
BEFORE : PANKAJ MITHAL, J.
ANIL KUMAR ....Appellant
Versus
Smt. SUCHITA ....Respondent
(First Appeal No. 326 of 2008 with Civil Misc. Writ Petition No. 11644 of 2007, decided on 2nd July, 2009)