Rajan Roy,J. - (1.) Heard Sri Apoorva Tewari learned counsel for the petitioner, Ms Aparita Bansal for the State Election Commission and Sri Anuj Garg learned standing counsel.
(2.) This writ petition has been filed under Article 226 of the Constitution of India challenging an order passed by the District Magistrate/District Election Officer on 30.07.2016 under Section 11-E of the U.P. Panchat Raj Act, 1947 (hereinafter referred to as 'the Act, 1947') wherein he has held that the petitioner was not qualified for contesting the election to the office of Gram Pradhan Village Barauli, District Hardoi, as, on the date of filing nomination he was functioning as an elected member of Kshetra Panchayat Barauli. Accordingly he has held that the office of Gram Pradhan Barauli is deemed to be vacant requiring a fresh process of election.
(3.) The facts of the case are that the petitioner admittedly was a member of Kshetra Panchayat Barauli and his tenure was till 17.03.2016. He filed his nomination for contesting election to the office of Gram Pradhan while he was still continuing as a member of Gram Panchayat. On 13.12.2015 the result of the election to the office of Gram Pradhan was declared and he took oath of office on 19/20.12.2015. Even at the cost of repetition it needs to be stated that it is the admitted factual position that on both the dates i.e. on the date of filing of nomination and on the date of taking oath of office of Gran Pradhan, he continued to function as an elected member of of Kshetra Panchayat Barauli. A complaint was made by one Aneeta Mishra that on account of holding office of member, Kshetra Panchayat, petitioner was ineligible to contest the election to the office of Gram Pradhan, therefore, the election was bad and he should be restrained from functioning as Gram Pradhan. Prior to this complaint i.e. on 09.02.2016, the petitioner is stated to have resigned from office of MEMBER, Kshetra Panchayat. The contention of the counsel for the petitioner is that this resignation was not actuated by detection of any dis-qualification but was a voluntary act on the part of the petitioner. Ms. Aneeta Mishra then filed a writ petition before this Court bearing no. 12466 (MB) of 2016 seeking a writ of quo warranto. The said writ petition was disposed of on 30.03.2016 in the following terms:- "Shri Manoj Kumar Mishra, Advocate has filed Vakalatnama on behalf of opposite party no.6. The same is taken on record. This petition has been filed with the following prayers:- (a) To issue a writ, order or direction in the nature of quo warranto for removal of Sri Rajendra Kumar Son of Sri Ram Kumar from Office of Village Pradhan of Village Panchayat-Barauli, Block-Kachauna, District-Hardoi. (b) To issue a writ order or direction in the nature of Mandamus commanding the opposite party no.3 to pass an order for declaration of the post of Village Pradhan of Village Panchayat-Barauli, Block-Kachauna, District-Hardoi as Vacant in view of Section 11(E) of Uttar Pradesh Panchayat Raj Act, 1947. chequered(c) To issue a writ, order or direction in the nature of Mandamus commanding the opposite party no.2 to issue a notification for holding a fresh election for Office of Village Pradhan of Village Panchayat-Barauli, Block-Kachauna, District Hardoi. (d) To issue a writ, order or direction in the nature of Mandamus commanding the opposite party no.4 to declare the proceedings followed by decisions taken by the opposite party no.6 as void since he was elected for the post of Pradhan of Village Panchayat-Barauli, Block-Kachauna, District-Hardoi. (e) To issue any other order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case. (f) Award cost of the writ petition in favour of the petitioner against the opposite party, forthwith to impart due justice.;