Research › Search › Judgment

Allahabad High Court · body

2004 DIGILAW 381 (ALL)

Shanti Devi v. Annapurna Devi

2004-02-24

I.M.QUDDUSI

body2004
JUDGMENT : I.M. Quddusi, J. Since common question of fact and law is involved in these appeals the same are being decided by a common judgment and order. 2. Heard Dr. L.P. Mishra, learned Counsel for the Appellants and Shri R.N. Gupta learned Counsel for the Respondent. 3. This First Appeal From Order has been filed against stay order after decision of the election petition passed by the Judge, who has decided the election petition filed under Rule 43 of the Uttar Pradesh Kshetriya Panchayats (Election of Pramukhs and Up-Pramukhs and Settlement of Election Disputes) Rules, 1994 (hereinafter referred to "Rules"). The election petition was decided by the Judge under the said Rules on 10.2.2004, and thereafter on the application moved by one of the parties, the operation of the judgment and order dated 10.2.2004 was stayed into 25.2.2004 or till any orders are passed by the High Court, whichever is earlier. 4. Sri R.N. Gupta, learned Counsel for the Respondent has raised preliminary objection on the maintainability of these appeals. 5. In the case of Komal Chand and Another Vs. The State of Madhya Pradesh, AIR 1966 MP 20 , the Full Bench of Madhya Pradesh High Court has held that neither the Registration Act nor the Stamp Act contains any provision giving to the registering officer any power to examine whether an instrument already registered was or was not duly stamped and to impound it. As soon as the registering officer registers a document presented to him for registration, the function in the performance of which the document was produced to him is over and he thereafter becomes functus officio having no power u/s 33 to impound the instrument. 6. In the case of Hari Vishnu Kamath v. Ahmad Ishak and Ors. AIR 1955 SC 233 (Vol. 44, C.N.-40), the Hon'ble Supreme Court has held that the High Courts have power under Article 226 to issue writs of certiorari for quashing the decisions of Election Tribunals, notwithstanding that they become functus officio after pronouncing the decisions. The writ of certiorari for quashing is directed against the record, and as a record can be brought up only through human agency, it is issued to the person or authority whose decision is to be reviewed. The writ of certiorari for quashing is directed against the record, and as a record can be brought up only through human agency, it is issued to the person or authority whose decision is to be reviewed. As it is the record of the decision that has to be removed by certiorari, the fact that the Tribunal has become 'functus officio' subsequent to the decision can have no effect on the jurisdiction of the Court to remove the record. 7. Rule 43 of the said Rules provide that an appeal shall lie from every order made by the Judge under Rule 43 to the High Court within thirty days from the date of order. The Judge had already passed an order under Rule 43 and the order under appeal is not passed under Rule 43 but has been passed after two days from the date of order passed under Rule 43. The order passed under Rule 43 was dated 10.2.2004 while the order passed under appeal is dated 12.2.2004. 8. Rule 40 of the said Rules provides procedure to hold proceedings of the election petitions. The procedure provided in the Code of Civil Procedure, 1908 in regard to suits, shall, insofar as it is not in consistent with the Uttar Pradesh Kshetra Panchayats and Zila Panchayats Act, 1961 or any provisions of these rules was to be followed in the hearing of elections petitions. As soon as the election petition is decided for all purposes, the hearing is deemed to have been concluded and, therefore, after the decision of the election petition, there can be no hearing within the meaning of Rule 40 of the Rules. Under the Act, the Judge has not been conferred any power to pass any order after conclusion of hearing and delivery of judgment in the election petition. In fact the Judge becomes functus officio as soon as he delivers the judgment in the election petition. It is also pertinent to mention here that Rule 40 of the Rules clearly provides that an order of the Judge under Sub-rule (2) of Rule 43 shall take effect from the date of order. Therefore, a Judge cannot pass any order after the delivery of the judgment in the election petition contrary to Rule 46 meaning thereby that he cannot supersede the statutory provision by granting the said for staying judgment in the election petition. Therefore, a Judge cannot pass any order after the delivery of the judgment in the election petition contrary to Rule 46 meaning thereby that he cannot supersede the statutory provision by granting the said for staying judgment in the election petition. Therefore, although the order under appeal passed by the Judge is illegal and is against the provisions of the Rules, but here the question is whether an appeal lies against such an order. The order under appeal cannot be termed as an order passed under Rule 43, therefore, no appeal lies against such order and the proper remedy for the Appellants was to challenge that order by filing a writ petition under Article 226 of the Constitution of India. 9. Therefore, the appeals are dismissed as not maintainable.