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2014 DIGILAW 413 (UTT)

Veena Sharma v. Hemlata

2014-09-23

SERVESH KUMAR GUPTA

body2014
JUDGMENT Servesh Kumar Gupta, J. Several issues have been raised by the petitioner/contesting opposite party No. 1 and she wants a stay order to stop the ongoing hearing of the Election Petition No. 87 of 2013 before the Court of Additional District Judge, Vikas Nagar, Dehradun. The backdrop, as highlighted by learned counsel for either party, is that in the election held for Headship of Nagar Panchayat, Smt. Veena Sharma was a winning candidate against Smt. Hemlata by a considerable margin running to the short of two thousand votes. Yet, the Election Petition was filed by Smt. Hemlata on the ground that Smt. Veena Sharma, procuring a false caste certificate claiming herself to be the Hindu Gorkha/OBC Caste, contested the election because such election could have been contested only by a reserved candidate of such caste. The Election Petition was filed by Smt. Hemlata on 29th May, 2013 challenging the election of Smt. Veena Sharma, who put her appearance before the Tribunal/Court after more than three and an half months of the institution of such petition. The ongoing hearing of Election Petition was tried to be hampered by the winning candidate for one reason or the other, inasmuch as, WPMS No. 1236 of 2014, was filed before the High Court which was disposed of by the order of the Court on 26th June, 2014 and the parties were directed to file their written statements. The permission to advance the arguments, on the application moved by the winning candidate under Order 7 Rule 11 of CPC, was also accorded. In compliance of the order of the High Court, Smt. Veena Sharma filed her written statement. Issues were framed on 18th July, 2014, including the issue that the Election Petition should be rejected under Order 7 Rule 11 of CPC. Other issues were also made questioning the jurisdiction of the Tribunal, which was the Court of Additional District Judge. The date was fixed for evidence. Smt. Hemlata filed the affidavit in the form of chief examination under the provisions of CPC, alongwith as many as 29 papers were also filed which all were the photocopies except one, besides, certain other papers were also filed alongwith separate affidavits. The date was fixed for evidence. Smt. Hemlata filed the affidavit in the form of chief examination under the provisions of CPC, alongwith as many as 29 papers were also filed which all were the photocopies except one, besides, certain other papers were also filed alongwith separate affidavits. So, objections were raised by Smt. Veena Sharma that if in cross-examination all these papers are referred to, then the same may amount to estoppel against her, and if all these papers are not referred to in the cross-examination, then it would tantamount to indirect admission of the same. Smt. Hemlata prayed that she should be directed to file either the primary evidence, and if the same is not available, then explaining the non-availability, secondary evidence could be filed. Learned Tribunal has rejected the objections, so raised by counsel of Smt. Hemlata, by way of passing the impugned order dated 16th September, 2014. I have heard learned counsel of the either party. Although no opportunity has been accorded as of now to the learned counsel of Smt. Hemlata to resist this petition by way of filing the written objections/counter affidavit, yet, she has sufficiently been heard. Learned petitioner’s counsel has shown several certified copies of orders of the Tribunal/ Court below which highlights that the conduct of Smt. Veena Sharma is to cause the delay in hearing the petition for the obvious reason that she was declared elected in the early 2013, and now 2014 is going to end. The total term of election is only for five years. If for one reason or the other, several primary objections will be raised by Smt. Veena Sharma, then the purpose of enacting Section 23 of the U.P. Municipalities Act, 1916, which prescribes the procedure to deal with such elections, will be frustrated because at every stage the primary objection can be taken and if every order is challenged under Section 227 of the Constitution of India, the total result will be that the Tribunal will not be in a position even to step ahead further in adjudicating such petition. All those arguments though may be dealt with and answered in detail by this Court but that may amount to be a finding of this Court by almost usurping the jurisdiction of the Trial Court. Thus, this petition is devoid of any merit and is hereby dismissed. All those arguments though may be dealt with and answered in detail by this Court but that may amount to be a finding of this Court by almost usurping the jurisdiction of the Trial Court. Thus, this petition is devoid of any merit and is hereby dismissed. Learned Tribunal is directed not to grant any adjournment to the winning candidate whose election has been challenged before it. The Court below shall proceed ahead by fixing the date not more than a week at one time.