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2009 DIGILAW 2760 (ALL)

RAMAWATI v. STATE OF U. P.

2009-08-04

A.P.SAHI, C.K.PRASAD

body2009
JUDGMENT By the Court.—Writ petitioner-appellant, aggrieved by order dated 30.6.2009 passed by a learned Single Judge in Civil Misc. Writ Petition No. 29110 of 2008, has preferred this appeal under Rule 5 of Chapter VIII of the Allahabad High Court Rules. 2. Short facts giving rise to the present special appeal are that the writ petitioner, a successful candidate in the election of the office of the Gram Pradhan challenged the order dated 12.6.2008, whereby the Prescribed Authority in exercise of the power under Section 12-C of the U.P. Panchayat Raj Act, had summoned the ballot papers. In the light of the aforesaid order, the ballot papers were produced and its recounting had taken place on 19.6.2008. Writ petitioner-appellant had not challenged the order dated 19.6.2008. 3. Taking into account the aforesaid facts, the learned Single Judge declined to interfere in the matter and has observed as follows : “Having considered the submissions made by the learned counsel for the parties and having perused the records of the present writ petition, I am of the considered opinion that this writ petition does not warrant any interference by this Court at this stage. Writ proceedings initiated against the order dated 12th June, 2008 have lost all efficacy in view of the recount of votes, which has taken place, more so when order dated 19th June, 2008, has not been challenged. However, order passed today by this Court shall not prejudice the rights of the petitioner to challenge the final order passed in the election petition by the Election Tribunal, if the same is found adverse to him including challenge to the order dated 12th August, 2008, whereby recounting has been directed, by way of revision under Section 12-C of the U.P. Panchayat Raj Act.” 4. We have heard Mr. Amulya Ratan Srivastava for the appellant, Mr. Awadhesh Kumar Singh for respondent No. 3 and Mr. M.S. Pipersenia, learned Additional Chief Standing Counsel for respondents 1 and 2. 5. Mr. Pipersenia, raises a preliminary objection in regard to the maintainability of this appeal. He points out that the order passed by the Prescribed Authority under Section 12-C of the U.P. Panchayat Raj Act, 1947 was assailed before the learned Single Judge, and the same having been dismissed, on the face of the language of Chapter VIII Rule 5 of the Allahabad High Court Rules, the appeal shall not be maintainable. He points out that the order passed by the Prescribed Authority under Section 12-C of the U.P. Panchayat Raj Act, 1947 was assailed before the learned Single Judge, and the same having been dismissed, on the face of the language of Chapter VIII Rule 5 of the Allahabad High Court Rules, the appeal shall not be maintainable. He points out that the Prescribed Authority is nothing, but a Tribunal within the meaning of Chapter VIII Rule 5 of the Allahabad High Court Rules. In this connection, he has drawn our attention to the Division Bench judgments of this Court in Jai Prakash Agarwal v. Prescribed Authority (Sub-Divisional Magistrate), Sadar, District Deoria and others, (1999) 1 UPLBEC 697 and Mohd. Talib Khan v. State of U.P. and others, (2008) 1 UPLBEC 538 . 6. We find substance in the submission of Mr. Pipersenia, learned Additional Chief Standing Counsel and following the aforesaid two Division Bench judgments, hold that the Prescribed Authority exercising the power under Section 12-C of the U.P. Panchayat Raj Act, is a Tribunal. Once it is held so, the appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, is not maintainable. 7. Even otherwise also, as observed by the learned Single Judge, if the result of the election petition goes adverse to her, she has liberty to prefer a revision against that. 8. We do not find any merit in the appeal and it is dismissed accordingly. ————