ANITA DEVI Vs. STATE OF U P

JUDGEMENT

(1.) PETITIONER , who is the elected Pradhan, seeks quashing of the order of the District Magistrate, Chandauli dated 19.08.2011 whereby the election of the petitioner as Pradhan of Gram Panchayat has been set aside in exercise of powers under Section 95 (1) (g) of the U.P. Panchayat Raj Act on the ground that from the High School Certificate of the petitioner, it is apparent that on the date of filing of the nomination he was under age. Counsel for the petitioner challenging the order impugned submits that High School certificate is only a piece of evidence to be considered in the matter of determination of age, it is not a conclusive proof of age. Petitioner relies upon the Division Bench judgment of this Court in the case of Jitendra Prasad Yadav @ Jitendra vs. State of U.P. and others (Special Appeal No. 1201 of 2011 decided on 11.07.2011). The Division Bench, after taking note of Section 12-C of the U.P. Panchayat Raj Act and Article 243-O of the Constitution of India and having regard to the fact that issue of age is basically an issue of fact which requires examination of oral as well as documentary evidence, has specifically held that the dispute qua disqualification being attached to the elected candidate because of his being under age has to be agitated by means of an election petition only. This Court also in the case of Kanhaiya Lal vs. State of U.P. and others reported in 2012 (1) ADJ, 600 has held that setting aside of the election of the Pradhan by the District Magistrate in exercise of powers under Section 95 (1) (g) on the ground that he was under age based on consideration of High School certificate/school leaving certificate is legally not justified. The proper course available to the defeated candidate is to file an election petition. This Court finds no good reason to take any different view than that which had been taken by the Division Bench in the case of Jitendra Prasad Yadav (Supra). Counsel for the petitioner however placed reliance upon the judgment of this Court in the case of Ram Saran Singh vs. District Panchayat Raj Officer, Fatehpur and others reported in 1993 RD, 417. The judgment is clearly distinguishable in the facts of the present case. In the aforesaid case the disqualification was attached on the ground that the Pradhan was suffering from Leprosy.

(2.) THE other judgment replied upon i.e. in the case of Bhikham Kharwar vs. State of U.P. reported in 2000 RD, 101 is no more good law in view of the judgment of the Division Bench in the case of Jitendra Prasad Yadav (Supra). Therefore, the order of the District Magistrate cannot be legally sustained and is hereby quashed. However, it is left open for the defeated candidate to file an election petition. If the election petition has already been filed, the Election Tribunal is directed to proceed with the same on day to day basis without granting any unnecessary adjournment to either of the parties. The petition shall be decided preferably within six months from the date a certified copy of this order is filed before the Tribunal. Writ petition is allowed subject to the observations made herein above. Photocopy of the writ petition, which has been signed by the counsel for the petitioner in red ink today, is treated to be the original record till the office is able to trace out the original petition.