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2017 DIGILAW 830 (ALL)

SHABINA BIBI v. STATE OF U. P.

2017-03-23

SURYA PRAKASH KESARWANI

body2017
JUDGMENT : Hon'ble Surya Prakash Kesarwani, J. 1. Heard Sri A.M. Tripathi, learned counsel for the petitioner, Sri V.D. Yadav, learned Standing Counsel for the State-respondents and Sri B.K. Upadhyay, learned counsel for the respondent no.5. 2. This writ petition has been filed praying for the following relief: A. Issue a writ, order or direction in the nature of certiorari quashing the impugned Election Petition No.09 of 2016 (Sampati Vs. Smt. Shabina and others), dated 18.01.2016, pending in the court of Prescribed Authority/Sub-Divisional Magistrate, Sirathu, District - Kaushambi. B. Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 27.2.2017 passed by the Prescribed Authority/Sub-Divisional Magistrate, Sirathu, District - Kaushambi in Election Petition No.09 of 2016 (Sampati Vs. Smt. Shabina and others). C. Issue a writ, order or direction in the nature of mandamus commanding the Prescribed Authority/Sub-Divisional Magistrate, Sirathu, District - Kaushambi not to proceed further in Election Petition No.09 of 2016 (Sampati Vs. Smt. Shabina and others). Submissions: 3. Learned counsel for the petitioner submits that since the Election Petition No.09 of 2016 (Sampati Vs. Smt. Shabina and others) was filed by counsel of the Election petitioner, namely, Sri Hari Mohan Gupta, and as such it was not entertainable in view of the provisions of Rule 3(1) of the Uttar Pradesh Panchayat Raj (Settlement of Election Disputes) Rules, 1994, (hereinafter referred to as the Rules). He referred to the pleadings made in paragraph 12 and 20 of the election petition which are reproduced below : "12. That it is most respectively submitted that in the present case the impugned election petition has been filed by the counsel for the respondent no.5, Sri Hari Mohan Gupta Advocate while under the law it was mandatory for the respondent no.5 to present the election petition personally. Since the same has not been done hence the impugned election petition is not maintainable and liable to be dismissed by this Hon'ble Court. 20. That the learned Prescribed Authority has recorded a wrong and erroneous finding that the election petition was filed by the respondent no.5, while in the very first page of election petition it is mentioned that the same was filed by Sri Hari Mohan Gupta Advocate." 4. In support of his submission learned counsel for the petitioner has relied upon the decision of this Court in the case of Viresh Kumar Tiwari Vs. Additional Dist. In support of his submission learned counsel for the petitioner has relied upon the decision of this Court in the case of Viresh Kumar Tiwari Vs. Additional Dist. Judge, Ballia and others 2014(1) ADJ 486 , Premlata Vs. Rajendra Pati 1959 All. LJ 741 and the judgment of Hon'ble Supreme Court in the case of G.V. Sreerama Reddy and another Vs. Returning Officer and others, JT 2009(1) SC 316 . 5. Learned standing counsel as well as learned counsel for the respondent no.5 supports the impugned judgment. 6. Learned counsel for the respondent no.5 further submits that the Election Petition was presented by respondent no.5. No adverse inference can be drawn merely because her advocate was also present at the time of presentation of election petition. In the impugned order the respondent no.4 has recorded a finding of fact that the Election Petition was presented by the respondent no.5. He further submits that this finding of fact could not be disputed by the petitioner and has not been even alleged to be perverse. He, therefore, submits that the controversy as to whether the election petition was presented by respondent no.5, is concluded by finding of fact. He submits that the judgment relied by learned counsel for the petitioner are distinguishable on facts. Discussion and Findings: 7. I have carefully considered the submissions of learned counsel for the parties. 8. Briefly stated facts of the present case are that election of pradhan of Village Panchayat - Bamhrauli, Block and Tehsil - Sirathu, District - Kaushambi, was held on 5.12.2015. Result was declared on 13.12.2015, in which the petitioner was declared elected. Respondent no.5, lost the election against the petitioner as per result declared on 13.12.2015. An Election Petition being Election Petition No.09 of 2016 (Sampati Vs. Smt. Shabina Bibi and 13 others) under Section 12 C(1) of the U.P. Panchayat Raj Act, 1947 (hereinafter referred to as the Act) was filed on 18.1.2016 by the respondent No.5 in which an application dated 26.12.2016 was moved by the petitioner praying for rejection of the Election Petition as not maintainable on the ground that the Election Petition was presented by one Sri Hari Mohan Gupta, Advocate, counsel for respondent no.5 and not by the respondent no.5. This application was rejected by the impugned order dated 27.2.2017. 9. Aggrieved with this order the elected pradhan, namely, the petitioner has filed the present petition. 10. This application was rejected by the impugned order dated 27.2.2017. 9. Aggrieved with this order the elected pradhan, namely, the petitioner has filed the present petition. 10. Perusal of the copy of the election petition shows that it was signed by the Election Petitioner (respondent no.5) on 18.1.2016 in Tehsil court compound, Sirathu. The affidavit accompanying the Election Petition was also sworn by the Election Petitioner on 18.1.2016 in the Tehsil compound Sirathu. It appears that immediately thereafter it was presented before the respondent no.4 on 18.1.2016 itself as evident from the order passed by the respondent no.4 on the election petition on 18.1.2016 as under: "Reader okn ntZ dj i{kks dks uksfVl tkjh djs^^ 11. The ground of objection raised by elected pradhan after about 11 months of the filing of the election petition is that on the margin of the first page of the election petition, the words "filed by Hari Mohan Gupta, Advocate" is written and therefore it was presented by counsel and not by the respondent No.5. 12. It is wholly undisputed that the Election Petition was signed and verified by the respondent no.5 election petitioner and an affidavit was sworn by her on 18.1.2016 in the Tehsil compound, Sirathu. Thus the presence of the respondent No.5 in the Tehsil compound, Sirathu on the day of presentation of the Election petition i.e. 18.1.2016 is proved. Now the only question remains to be considered is as to whether the petitioner could prove before the respondent No.4 the allegation of presentation of Election petition by counsel and not by the respondent No.5 13. Now the only question remains to be considered is as to whether the petitioner could prove before the respondent No.4 the allegation of presentation of Election petition by counsel and not by the respondent No.5 13. In this regard in the impugned order, dated 27.2.2017 the respondent no.4 has recorded findings of fact as under : ^^loZizFke izfrokfnuh }kjk ;kfpdk dh /kkj.kh;rk ds fcUnq ij fn;s x;s izkFkZuk i= fnuakd 26&12&2016 esa mfYyf[kr rF;ksa dk lE;d~ ifj'khyu fd;k x;k] ftlesa ;g mfYyf[kr gS fd&;kfpdk fnuakd 18&1&2016 ;kph us Lo;a izLrqr ugh fd;k gS] cfYd mlds vf/koDrk }kjk izLrqr dh x;h gS] blfy, ;g ;kfpdk ekuuh; mPp U;k;ky; }kjk ohjs'k dqekj frokjh cuke vij ftyk U;k;k/kh'k ,oa vU; flfoy izdh.kZ fjV ;kfpdk la[;k& 43595 o"kZ 2012 esa fofuf'pr fu.kZ; fnuakd 17&12&2013 ds vk/kkj ij /kkj.kh; ugh gS] ds tokc esa ;kfpuh ds fo}ku vf/koDrk }kjk ;g rdZ izLrqr fd;k x;k fd ftl fnu ;kfpdk izLrqr dh x;h rn~fnuakd dks ;kfpuh U;k;ky; es mifLFkr gqbZ vkSj lR;kiu esa vius gLrk{kj cuk;s] rFkk vius vf/koDrk ds lkFk vkdj ;kfpdk lafLFkr fd;k] ftl ij ihBklhu vf/kdkjh }kjk ;kfpdk ntZ djus dk vkns'k ikfjr fd;kA bl dFku ds leFkZu es ;kfpdk dk eseks ns[kk x;k ;kfpdk i= fnuakd 18&1&2016 ds izR;sd i`"B ij ;kfpuh lEifr ds gLrk{kj cus gSa] vkSj lR;kiu Hkh ;kfpuh }kjk gLrk{kfjr gS] ftl ij ihBklhu vf/kdkjh }kjk ;g vkns'k ikfjr fd;k x;k gS fd ^^okn ntZ dj i{kks dks uksfVl tkjh djs^^A bl izdkj izfrokfnuh ds fo}ku vf/koDrk ek0 mPp U;k;ky; }kjk fnuakd 17&12&2013 es of.kZr fof/k&OoLFkk ds vkyksd esa ;g lkfcr djus esa loZFkk foQy jgs fd mDr ;kfpdk dks ;kfpuh }kjk Lo;a izLrqr ugh fd;k x;k gSA ,slh fLFkfr esa izfrokfnuh }kjk ;kfpdk dh /kkj.kh;rk ds fcUnq lquokbZ gsrq izLrqr izkFkZuk i= fnuakd 26&12&2016 loZFkk cyghu izrhr gksrk gS^^A 14. The contents of paragraphs 12 and 20 of the writ petition reproduced in para 3 above have been heavily relied by learned counsel for the petitioner before this Court to contend that the election petition was not presented personally by the respondent no.5. The aforesaid paragraphs 12 and 20 of the writ petition have been sworn by the petitioner on personal knowledge. There is nothing on record to show that on 18.1.2016 when election petition was presented by the respondent no.5, the petitioner was present. The aforesaid paragraphs 12 and 20 of the writ petition have been sworn by the petitioner on personal knowledge. There is nothing on record to show that on 18.1.2016 when election petition was presented by the respondent no.5, the petitioner was present. Thus the averments made in paragraphs 12 and 20 of the writ petition on personal knowledge disputing the presentation of the Election petition by the respondent No.5 on 18.1.2016 before the respondent No.4 can neither be accepted nor it can be given any weight. 15. That apart, the petitioner has merely alleged that the prescribed authority has recorded a wrong and erroneous finding that the election petition was filed by the respondent no.5. There is no allegation in the writ petition that the respondent no.5 accompanied with her counsel was not present before the respondent no.4 to present the Election Petition. If she was accompanied by her counsel for presenting the election petition then it can not be said to be a defect in presentation of the election petition by her. The findings recorded by the respondent no.4 that the Election petition was presented by the respondent no.5 on 18.1.2016, is a finding of fact. There is no allegation in the writ petition based on any material that the finding of fact so recorded is perverse. Under the circumstances, I have no difficulty to hold that the election petition was properly presented on 18.1.2016 by the respondent no.5 personally before the respondent no.4. 16. The judgments of this Court relied by learned counsel for the petitioner are wholly distinguishable and have no application on the facts of the present case. In the case of Viresh Kumar Tiwari (supra) there was no dispute that the election petition was presented by the counsel of the election petitioner. In paragraph 15 of the said judgment this Court recorded a finding that "There is nothing to indicate that the petitioner was present alongwith his counsel at the time when the petition was presented and consequently, an irresistible conclusion can be drawn that the election petition was presented through his counsel and not presented personally by the respondent no.3. The requirement of law stipulates that the election petition is to be presented by the candidate personally, since the same was not done the election petition was not maintainable." The facts of the present case are entirely different. The requirement of law stipulates that the election petition is to be presented by the candidate personally, since the same was not done the election petition was not maintainable." The facts of the present case are entirely different. In the present case respondent no.5 presented the election petition on 18.1.2016. Merely because she was accompanied by her counsel that shall not result in any fatal defect in the presentation of the election petition by her. 17. The case of Premlata (supra) relied by learned counsel for the petitioner has also no relevance on the facts of the present case inasmuch as in that case it was admitted fact that the election petition was presented by the counsel of the election petitioner. The judgment of Hon'ble Supreme Court in the case of G.V. Sreerama Reddy (supra) is also distinguishable on facts inasmuch as the fact of that case was, as evident from paragraph 4 of the report; that "Registry of the High Court put up an office objection that as the appellants were not present at the time of filing of the election petition, the presentation of the papers were not in accordance with Section 81 of the Act and as such there was no proper filing of the election petition." On these facts Hon'ble Supreme Court held that in view of the endorsement of the Registry (Judicial) dated 7.7.2008 that the election petition was presented only by an advocate and not by election petitioner and as such the reasoning of the High Court in dismissing the election petition is accepted and the dismissal of the election petition on account of improper presentation is upheld. In the present set of facts, the respondent no.4 prescribed authority himself has recorded a finding based on record that it was personally presented by the respondent no.5 election petitioner on 18.1.2016 and an endorsement was made by him to register the case and to issue notices to the parties. Thus the judgments relied by the petitioner are clearly distinguishable and are of no help to her. 18. In view of the above discussion, I do not find any merit in this writ petition. 19. Writ petition is wholly misconceived and is, therefore, dismissed.