- (1.) PALOK Basu, J. Raja Ram has filed this writ petition under Article 226 of the Constitution of India praying for a mandamus to re-schedule the election process not proceed with! the impending election for the posts of Pramukh of Kshetra Panchayat Shiv Rajpur, district Kanpur Dehat and a further mandamus should issue commanding the respondents to first hold the election of Member of Kshetra Panchayat from Bagchipur constituency No. 25 in pursuance of the directions given by the 1st Addi tional District and Sessions Judge, Kanpur Dehat on 11-12-1995.
(2.) SHRI G. C. Bhattacharya, learned counsel for the petitioner has been heard in support of this writ petition at substantial length. It is opposed by SHRI A. N. Singh assisted by SHRI Anil Kumar, Advocate on behalf of the U. P. State Election Commission and SHRI S. G. Hasnain on behalf of other official of the State arrayed as opposite party in this writ petition. In order to appreciate the aforesaid prayer only two facts may be mentioned. Constituency No. 25 denotes Bagchipur constituency in the District Kanpur Dehat for the purposes of membership of Kshetra Panchayat Shiv Rajpur in the said district. Five persons including the petitioner Raja Ram and one Shri Akhilesh filed their nominations. In the said election the said Shri Akkhiiesh was declared elected. The petitioner challenged the said election result by Election Petition No. 1/95. The said petition proceeded in the Court of the 1st Additional District and Sessions Judge, Kanpur Dehat where an ex-parte final order has been passed on 11-12-1995, whereby the election for the membership of Bagchipur constituency No. 25 has been set aside and quashed. A further direction has been issued calling upon the District Election Officer to conduct the Election for the said link membership a-new in accordance with law. The second fact is that elections for the posts of Kshetra Panchayat Pramukh (Block Pramukh) are scheduled to take place on 23-1-1996 and nomination papers were accepted till 21-1-1996 and withdrawal was permissible till 22-1-1996. In view of the aforesaid two facts the aforesaid prayer has been made in the instant writ petition. Shri G. C. Bbattacharya, learned counsel for the petitioner vehemently argued that, the bar created by Article 243-O of the Constitution of India will not debar the petitioner from raising the question of challenging the said election scheduled to be held on 23r 1-1996 for the reason that sub-clause (b) thereof will be attracted to the facts of this case and therefore no election petition could be filed under the said sub-clause (b) and hence there is no alternative remedy except to approach this Court under Article 226 of the Constitution of India. This argument has been opposed.
(3.) "on merits, it was vehemently argued by Shri Bhattacharya that in view of the provisions contained in Section 6 of the Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 read with the provisions contained in Section 7 thereof it is imperative on the part of the respondents to first hold the election as directed by the District Judge in the election petition and then only proceed with the election of the Pramukh in accordance with law after filling up the said vacant consti tuency. This argument is also opposed. Another argument has been advanced by relying upon the wordings used under sub-section (1) and the wordings used in sub-section (2) of Section 7. For ready reference Section 7 is quoted below :- "7. Pramukh and Up-Pramukh.- (I) In every Kshetra Panchayat a Pramukh, a senior Up-Pramufeh and any junior Up-Pramukh shall be elected by the elected members of the Kshettra Panchayat from amongst themselves. (2) The election to the office of Pramukh and Up-Pramukh may be hold notwithstanding and vacancy in the office of the elected members of Kshettra Panchayat. " The argument proceeds that just as sub-section (1) leaves open the office of Pramukh or Up-Pramukh only to the elected members of the Kshettra Panchayat concerned, sub-section (2) of Section 7 mandates that any vacancy in the officer of the elected members of Kshettra Panchayat concerned shall not stop election for the office of Pramukh or Up-Framukh. By placing the distinction in the language of the two sub-clauses it was argued by Sri Bhattacharya that if a vacancy continues within the meaning of sub section (1), the election should stop until the said vacancy is fulfilled for, otherwise the Legislature could have made some other provision so as to dispel such an interpretation as is put by him.;