The main legal point established in the judgment is the importance of following the statutory provisions and the elaborate challenge procedure provided under the UP Panchayat Raj Act, 1947, and exercising writ jurisdiction only in exceptional circumstances.

JUDGMENT :

1. Heard Sri Prem Prakash Yadav, learned Standing Counsel assisted by Sri Devendra Pratap Yadav, learned counsel for the petitioner, Sri Imran Syed, holding brief of learned counsel for the respondent-Election Commission and learned Standing Counsel for the State-respondent.

2. Present petition has been filed seeking a writ of quo warranto against the private respondent no.10 who is the elected Gram Pradhan of Gram Panchayat, Nanuta Dehat Pargana & Tehsil Rampur Maniharan, District-Saharanpur.

3. The exact foundation for the present petition is, undisputedly, the said respondent no.10 is an elector included in the list of electors for the Nagar Nigam Nanuta for the year 2017. Without seeking deletion of her name from that list, her name was included in the list of electors from the Gram Panchayat, Nanuta Dehat for the year 2021. Thus, the said respondent is wholly ineligible. Heavy reliance has been placed on the mandatory provision of Section 9(7) of the UP Panchayat Raj Act, 1947 (hereinafter referred to as the 'Act').

4. In support of his submission, learned Senior Counsel appearing for the petitioner has also referred to a decision of the Supreme Court in Bharati Reddy Vs State of Karnataka & Others (2018) 12 SCC 61. In that case, the bar of alternative remedy created under Article 243-O(b) was held to be contrary to the basic structure of the constitution and therefore not enforceable.

5. On the other hand, learned counsel for the Election Commission would contend that by virtue of the statutory provision contained in Section 12-C of the Act and the enabling provision under Section 12-C(3) of the Act read with Article 243-O, the only remedy available to the petitioner is to file an election petition. He has relied on a Division Bench decision of this Court in Gyanveer Singh Vs State of U.P. & Others 2020 (10) ADJ 497 (DB).

6. Having heard learned counsel for the parties, in the first place, by virtue of Section 12-C(1)(b) read with Section 12-C(3), it cannot be denied that the petitioner could have maintained an election petition on the ground brought by him in this petition. Similar view has been taken by the Division Bench of this Court in Gyanveer Singh Vs State of U.P. & Others (supra) after following the ratio of the Supreme Court decision in Jaspal Singh Arora Vs State of M.P. (1998) 9 SCC 594; Gurdeep Singh Dhillon Vs Satpal (2006) 10 SCC 616 and K. Venkatachalam Vs. A. Swamickan & Another (1999) 4 SCC 526.

7. Insofar as the other decision of the Supreme Court, relied upon by learned Senior Counsel for the petitioner is concerned, in Bharati Reddy Vs State of Karnataka & Others (supra) though it was held (to the contrary) that the jurisdiction of judicial review of this Court under Articles 226 and 227 of the Constitution and of the Supreme Court were part of the basic structure of the Constitution and could not be abridged or by passed, at the same time, in paragraph no.13 of the decision, it was observed as under :

"13. It is thus clear that power of judicial review under Articles 226/227 of the Constitution is an essential feature of the Constitution which can neither be tinkered with nor eroded. Even the Constitution cannot be amended to erode the basic structure of the Constitution. Therefore, it cannot be said that the writ petition filed by respondent Nos. 6 to 9 under Article 226 of the Constitution is not maintainable. However, it is left to the discretion of the court exercising the power under Articles 226/227 to entertain the writ petition."

8. In view of the facts of the present case, though the communication dated 1 April, 2021 issued by the SDM Rampur Maniharan (annexed as annexure no.4 to the writ petition), prima facie indicates doubt as to the eligibility of respondent no.10 to contest the election of Gram Pradhan, at the same time, it would be wholly premature to reach a conclusion against the said respondent acting solely on that material. Submission and acceptance of nomination at the e