- (1.) O. P. Garg, J. The petitioner Smt. Meenu was declared elected as the Pradhan of the Gram Panchayat Behuta Vikas Khand Patara, Tehsil Ghatampur, District Kanpur Nagar. The rival defeated candidate Smt. Munni Devi- respondent No. 3 filed an elec tion petition under Section 12-Cof the U. P. Panchayat Raj Act, 1947 (hereinafter referred to as 'the Act') read with U. P. Panchayat Raj (Settlement of Election Dis pute) Rules, 1994 (hereinafter referred to as 'the Rules of 1994' ). The Prescribed Authority, Le. Sub-Divisional Officer, Ghatampur-respondent No. 2 has allowed the election petition by order dated 16-12-2000 by recording a finding that on the date of the nomination, Le. , 16-6-2000, the age of the petitioner was less than 21 years and, therefore, she was ineligible to contest the election. By the same order, Smt. Munni Devi, the election petitioner-respondent No. 3 was declared as duly elected Pradhan of the Gram Panchayat Behuta Vikas Khand Patara, Tehsil Ghatampur, District Kanpur Nagar. Against this order, the petitioner preferred a revision application No. 60 of 2000 under the provisions of Section 12-C (6) of the Act which has been dismissed by Illrd Additional District Judge, Kanpur Dehat on 7-2- 2001. The orders passed by the Prescribed Authority-respondent No. 2 on the election petition filed by the respondent No. 3 and that of the Revisional Court have been chal lenged by the petitioner by means of the present writ petition under Article 226 of the Constitution. It is prayed that the aforesaid orders be quashed and the respondents be directed not to interfere in the functioning of the petitioner as Prad han of the Gram Panchayat concerned.
(2.) HEARD Sri P. N. Saxena, Senior Ad vocate, assisted by Sri Vineet Singh Sengar, learned Counsel for the petitioner and S. L. P. Singh, appearing on behalf of the respondent No. 3. Sri P. N. Saxena canvassed two specific points-firstly that the age of the petitioner on the date of nomination was about 23 years and, therefore, the finding recorded by the Prescribed Authority that she was below 21 years of age on the relevant date is illegal and, secondly, even if it be taken that the petitioner was not eligible for filing nominations paper and her election was void in that event the respondent No. 3 could to be declared as elected Pradhan and the proper course for the Prescribed Authority was to have declared a vacancy for which fresh election was to be held. In support of the second contention, Sri Saxena placed reliance on the decision of the apex Court reported in J. T 1993 (6) 345, Gadakh Yashwantrao Kankanao v. E. V. alias Balasaheb Vikhe Patil and others, in which the provisions of Section 101 (b) of the Representation of People Act came to be interpreted. It is an endubitable fact that the date of birth of the petitioner as incor porated in the High School certificate is 5-3-1981. Nomination papers were filed on 16-6-2000. Only those persons who have completed 21 years of age on the date of nomination are entitled to contest the election. On 16-6-2000, the petitioner, ac cording to her date of birth as recorded in the High School certificate was less than 21 years of age. The petitioner does not rely on the date of birth as recorded in the High School certifi cate as its correctness was challenged. The petitioner, therefore, got herself medically examined by the Chief Medical Officer who had issued a certificate on 4-8-2000 putting the estimated age of the petitioner as 23 years. On the strength of the medical opinion, the petitioner claims that her age on the date of filingofnominationpaperwasabove21years. It would not be out of place to mention that the medical opinion can never be precise or exact. It gives approximate idea of the age based on the ossification test. In such opinion, there is always a variation of 2-3 years on both the sides. On the face of the date of birth as recorded in the High School certificate, the medical opinion cannot prevail There is a decision of this Court on the point reported in 1993 R. D.-119 (H. C.) Kuber Nath Tewari v. Additional District Judge, Battia and others, in which it was held that the date of birth given in the High School certificate has to be accepted as correct date of birth for the purpose of deciding a election petition. If the date of birth of the petitioner as recorded in the High School certificate is accepted in that event she was undoubtedly less than 21 years of age on the date of filing of the nomination paper and accordingly, she was not eligible to contest the election. Her election, therefore, has been rightly held to be void.
(3.) NOW I take up the second point raised on behalf of the petitioner which is grounded on the decision of the apex Court in Gadakh Yashwantrao Kankarrao (supra ). Section 101 (b) of the Representation of People Act deals with the return of a candidate by corrupt practices. It runs as follows:- " (b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained majority of the valid votes, the High Court shall after declaring the election of the returned candidate to be void, declare the petitioner or such other candidate, as the case may be, to have been duly elected. " The law laid down in the aforesaid decision would not be attracted to the present case, particularly keeping in view the statutory provisions made in sub-clause (ii) of sub-section (4) of Section 12-Cof the Act. It reads thus :- "12-C. (4) The authority to whom the ap plication under sub-section (1) is made shall, in the matter of- (i ). . . (ii) Setting aside the election of declaring the election to be void or declaring the applicant to be duly elected or any other relief that may be granted to the petitioner, have such powers and authority as may be prescribed. ";