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2023 DIGILAW 1744 (ALL)

Dinesh Kumar v. Prescribed Authority

2023-07-21

ANISH KUMAR GUPTA

body2023
JUDGMENT : ANISH KUMAR GUPTA, J. 1. Heard Shri Bhola Nath Yadav, learned counsel for the petitioner and Dr. Kuldeep Mishra, learned counsel for respondent No. 2 and Shri Surya Bhan Singh, learned Standing Counsel appearing for respondent Nos. 1, 9, 10, 11 and 12. 2. The petitioner is aggrieved by the impugned order dated 08.06.2022 passed by the Sub Divisional Magistrate, Sadar, Mirzapur in Case No. 7424 of 2021, Surta Nath @ Surat Nath vs. Dinesh Kumar and Others, under Section 12-C of U.P. Panchayat Raj Act, 1947, whereby an application of the petitioner dated 27.04.2022 seeking cross examination of the witnesses, has been rejected in view of Rule 4 Proviso (ii) & (iv) of the Uttar Pradesh Panchayat Raj (Settlement of Election Disputes) Rules, 1994 (hereinafter referred as 1994 Rules). 3. Learned counsel for the petitioner relied upon the judgment of this Court in Writ Petition No. 2904 of 2004 (Arunesh vs. Prescribed Authority/S.D.O. Gonda) to contend that while recording the evidence as per Rule 4 of 1994 Rules, opportunity of cross-examination is required to be given. 4. He has further relied upon the provision of Order 18 Rule 4 of the Code of Civil Procedure, 1908 to contend that evidence submitted by way of affidavit cannot be taken on record without granting an opportunity of cross-examination. 5. He has further relied upon the Full Bench judgment of this Court in Civil Misc. Writ Petition No. 11079 of 1983, Ram Adhar Singh vs. The District Judge and Others, 1985 All. W.C. 246 [decided on 14.03.1985] and the provisions of Section 137 of the Evidence Act to contend that the evidence cannot be taken on record, without giving an opportunity of cross-examination. 6. On the other hand, learned counsel for the respondent No. 2 has relied upon the proviso (ii) & (iv) of Rule 4 of Rules 1994 and contends that in the election petition under U.P. Panchayat Raj Act, 1947, application of Code of Civil Procedure is permitted to the limited extent. So far as recording of evidence is concerned, the provision of Code of Civil Procedure as contained in Order 18 Rule 4 of CPC are not applicable. He further submits that the provisions of C.P. C. are general in nature and the provisions of 1994 Rules are special statute which shall prevail over the general law. 7. So far as recording of evidence is concerned, the provision of Code of Civil Procedure as contained in Order 18 Rule 4 of CPC are not applicable. He further submits that the provisions of C.P. C. are general in nature and the provisions of 1994 Rules are special statute which shall prevail over the general law. 7. Learned counsel for the State-respondents submits that none of the judgment cited by the learned counsel for the petitioner deals with the proviso (ii) and (iv) of the Rule 4 of 1994 Rules and the 1994 Rules being the special law has to prevail over the provisions of Code of Civil Procedure. 8. Rule 4 of the Uttar Pradesh Panchayat Raj (Settlement of Election Disputes) Rules, 1994, reads as under: “4. Hearing of the petition: (1) Subject to the provisions of the Act and these rules, every election petition shall be tried by the Sub-Divisional Officer, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, for the trial of suits: Provided that: (i) the Sub-Divisional Officer may hear the petitioner or his counsel and if he finds that the petitioner has no substance, reject the same without the issue of any notice to the opposite parties. (ii) it shall not be necessary for the Sub-Divisional Officer to record the evidence in full and he may maintain only a memorandum of evidence produced by the parties before him. (iii) if there is a sole petitioner and he dies, or there is a sole respondent and he dies, the petition shall be abate. (iv) the Sub-Divisional may allow only such evidence to be produced as he deems relevant for the purpose of deciding the petition. (v) the District Magistrate may at any stage on sufficient cause being shown transfer an application made under sub-section (1) of Section 12-C for hearing to another Sub-Divisional Officer. (vi) an application not presented within time or unaccompanied by a treasury challan as required under sub-rule (1) of Rule 3 may, at any time, be dismissed by the Sub-Divisional Officer. (vii) the Sub-Divisional Officer may, on an application of either party made within five days after the date of his decision, review his order. (vi) an application not presented within time or unaccompanied by a treasury challan as required under sub-rule (1) of Rule 3 may, at any time, be dismissed by the Sub-Divisional Officer. (vii) the Sub-Divisional Officer may, on an application of either party made within five days after the date of his decision, review his order. (2) If the Sub-Divisional after hearing finds in respect of any person whose election is called in question by the petition, that his election was valid, he shall dismiss the petition as against such person and may award costs at his discretion and in case he finds the application to be altogether frivolous he may also order that the security deposit shall in part or whole be forfeited to the concerned Gram Panchayat. (3) If the Sub-Divisional Officer finds that the election of any person was invalid he shall either: (a) declare a casual vacancy to have been created. (b) declare another candidate to have been duly elected, whichever course appears, in the particular circumstances of the case, to be appropriate, and in either case may award costs at his discretion: Provided that no such declaration shall be made unless a claim for it has been made in the application. (4) The security deposit or portion thereof, as the case may be, not forfeited under sub-rule (2) and not required for payment of any costs awarded to any opposite party shall be refunded by the District Panchayat Officer to the person depositing the same or in case of his death, to his legal representative.” 9. Rule 4 of 1994 Rules provides for hearing of the election petition arising out Panchayat Election. 10. From bare reading of the aforesaid provision of 1994 Rules, it is crystal clear that the application of Civil Procedure Code has been made to a limited extent and so far as recording of evidence is concerned the proviso (ii) and (iv) of Rule 4 of 1994 Rules, are complete code in itself. 11. The reliance placed by the learned counsel for the petitioner upon Order 18 Rule 4 of CPC and Section 137 of CPC is misconceived. The aforesaid provision being general in nature shall not apply where Special Law provides specific procedure. 12. The learned counsel for the petitioner has heavily placed reliance upon the judgment Arunesh vs. Prescribed Authority/S.D.O. Gonda (supra), wherein this Court has issued the following directions: “5. The aforesaid provision being general in nature shall not apply where Special Law provides specific procedure. 12. The learned counsel for the petitioner has heavily placed reliance upon the judgment Arunesh vs. Prescribed Authority/S.D.O. Gonda (supra), wherein this Court has issued the following directions: “5. I may point out that Uttar Pradesh Panchayat Raj (Disposal of Election Disputes) Rules, 1994 have been framed under section 12-C, 12-D read with section 110 of the Uttar Pradesh Panchayat Raj Act. Rule 4 of these Rules provides that the procedure of Civil Procedure Code shall be applied in the hearing of election petitions subject to the rules made under these Rules. Rule 4 makes it clear that the procedure of CPC shall be applied. Therefore, the opposite party No. 1 is directed to dispose of the pending applications for the amendment of the written statement and for summoning the documents and after disposal of these applications opposite party No. 1 is directed to frame issues and after framing of tire issues, he will record the statement of the witnesses of the election petitioner and opportunity of cross-examination shall be given to the opposite parties. After that the opposite parties shall be given opportunity to adduce oral evidence. All the documents of both the parties shall be taken on the date of framing the issues. Either of the party shall be at liberty to request the Presiding Officer to summon the specific document which are required to be proved in the election petition and the Presiding Officer may pass appropriate order for summoning of the documents if those documents are required to ascertain whether a prima facie case is made out or not. The question of summoning the ballot papers or recounting be disposed of after hearing both the parties if it is found that prima facie case is made out to summon the ballot papers or the recounting of the votes. So far as the impugned order is concerned, this order will not be implemented unless the due procedure as directed above, is followed by the opposite party No. 1 and if this order is to be implemented, there will be a specific order pointing out the particular documents after hearing both the parties” 13. So far as the impugned order is concerned, this order will not be implemented unless the due procedure as directed above, is followed by the opposite party No. 1 and if this order is to be implemented, there will be a specific order pointing out the particular documents after hearing both the parties” 13. From perusal of the aforesaid directions, it is apparent that the learned Single Judge has not considered the specific provision of proviso (ii) and (iv) of Rule 4 of 1994 Rules, while passing the directions regarding the cross-examination of witnesses. Therefore, in my considered view, the aforesaid judgment is per incuriam likewise judgment in Ram Adhar Singh (supra) also did not deal with the proviso (ii) and (iv) of Rule 4 of 1994 Rules, therefore, the same cannot be applicable in the instant case. 14. In view of the aforesaid, the instant writ petition is dismissed being devoid of merits. 15. In view thereof, it is hereby directed that the Sub-Divisional Magistrate, Sadar, Mirzapur shall decide the instant Election Petition at the earliest expeditiously, preferably within a period of two months from the date of production of a certified copy of this order after following due procedure of law.