Hon'ble V.K.Shukla - (1.) PRESENT writ petition has been filed for quashing of the judgment dated 1.9.2007 (Annexure -14 to the writ petition) passed by the Sub-Divisional Magistrate, Salempur, Deoria, allowing the election petition preferred under Section 12C of the U. P. Panchayat Raj Act, 1947 and the order of its affirmance in revision by judgment dated 4.11.2009 passed by Special Judge, E.C. Act, Court No. 5, Deoria.
(2.) BRIEF background of the case is that election for the post of chairman of Town Area Malkauli, Block and Tehsil Salempur, District Deoria, was held. In the said election, the petitioner was one of the contestants along with 11 others. As per petitioner, at the time of filing nomination paper no objection was raised by any of the candidates either before the Nomination Officer or before the Returning Officer about the age of the petitioner and the nomination of the petitioner was found to be valid. The petitioner along with others contested the election and won the same. One Ashok Kumar filed election petition on 27.9.2005, contending therein that the petitioner was disqualified from contesting the election, as he was below 21 years of age at the time of election. The petitioner filed his written statement, taking plea that he was above 21 years of age at the time of filing nomination papers and his nomination paper was even accepted. In the written statement so filed, the petitioner mentioned his date of birth as 8.8.1983. Petitioner stated that certain mistakes had crept in written statement qua the correct date of birth, therefore, amendment application was moved on 27.10.2006 for correcting the mistake, which was initially turned down by the Election Tribunal, but ultimately allowed, pursuant to order passed by this Court in writ petition No. 4234 of 2007. Petitioner submits that in support of his claim, he got examined himself and statement of Awadhesh Kumar, Ram Sarikha Yadav, Sri Indrasan and Sri Moti Lal were also recorded. In the shape of documentary evidence, the petitioner produced certificate dated 30.8.2006 of Junior High School, Berdiha, copy of transfer certificate dated 30.8.2007 along with transfer certificate dated 18.8.2007 having registration No. 27335; transfer certificate dated 7.7.2002 from Swami Devanand Intermediate College, voter I.D. Card and cross-list of High School Examination, in which he had failed in 1997. From the side of respondent, the respondent got examined himself along with one Hansnath Yadav. The Election Tribunal considered the matter at length and on 1.9.2007 passed order holding the petitioner's age below 21 years, as such under the provisions of U.P. Panchayat Raj Act, 1947, he was disqualified to hold the office of the Chairman. Aggrieved against the said order, the petitioner preferred revision. Revision was filed by Ashok Kumar also. During pendency of revision, records were summoned and requisite documents were filed through the clerk of the institution. Ashok Kumar, elector: petitioner, withdrew his revision and accepted date of birth of petitions as 16.7.1981, by moving application dated 14.5.2008. Qua the revision preferred by petitioner, same was objected to by Sri lndal Prasad and Sri Ajai Kumar, though they had not filed any election petition, questioning the validity of election of petitioner. Thereafter revision preferred has been dismissed. At this juncture present writ petition has been filed. Sri Arvind Srivastava, Advocate, contended with vehemence that the finding that petitioner was ineligible to contest the election being less than 21 years of age, is uncalled for, whereas documentary evidence available on record clearly demonstrates that the petitioner was not at all disqualified to contest the election, rather he was qualified to contest the election of Chairman being above 21 years of age, as such the orders passed by the Prescribed Authority as affirmed in revision is liable to be quashed, and writ petition, as it has been framed and drawn is liable to be allowed. Countering the said submission, Sri S.N. Singh, Advocate, on the other hand, contended that manipulations and manoeuvring made by the petitioner had been duly exposed and were visible even from the naked eyes; as such no interference should be made.
(3.) AFTER respective arguments have been advanced, factual position which emerges in the present case, is that the election for the post of Chairman of Town Area Malkauli had taken place, wherein petitioner was declared as elected. Section 5A of the U.P. Panchayat Raj Act, 1947 provides that a person shall be disqualified for being chosen, nominated or appointed to, and for holding any office in the Gaon Sabha or Gaon Panchayat or the Nyaya Panchayat constituted under Section 42, if he is, for the time being in force, not a member of the Gaon Sabha concerned, but no person shall be disqualified on the ground that he is less than 25 years of age after he has attained the age of 21 years. Said proviso is in consonance with the constitutional mandate, provided under the proviso to Article 243-F of the Constitution, holding the field of disqualification. Petitioner applied for being elected by filing his nomination paper, and on record at no point of time before the Nomination Officer any objection had been filed by any contestants contending therein that on the ground of age, petitioner was disqualified and he could not contest the election. His nomination paper was found valid, based on the same, petitioner contested the election and was declared elected; thereafter election petition has been filed questioning his election on the ground of age being disqualified to contest election being below 21 years of age and accordingly necessary declaration be made on the said front. Necessary declaration of petitioner being disqualified has been made on age front, said finding is subject matter of challenge.;