Remanded

smt. naseem bano v. State of U.P. and 8 others

Allahabad HC15 Nov 2018WRIC/10162/2018

Case brief

AI extract

What is this about?

Circuit Bench in Allahabad High Court's Court No. 30 quashed impugned orders regarding election petition maintainability. The court found the Prescribed Authority issued findings on CPC applicability and specific objections lacking basis, remanding the matter for fresh decision.

What did the court decide?

The impugned orders dated 20.09.2017, 27.11.2017 and 17.01.2018 are quashed, and the matter is remanded to Respondent No. 2 for fresh consideration of maintainability within one month.

smt. naseem bano Vs State of U.P. and 8 others — Election Law | Allahabad HC (2018)

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Court No. - 30

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Case :- WRIT - C No. - 10162 of 2018

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Petitioner :- Smt. Naseem Bano Respondent :- State Of U.P. And 8 Others Counsel for Petitioner :- Javed Husain Khan,Gulrez Khan Counsel for Respondent :- C.S.C.,Kamta Prasad,Mahesh Prasad Yadav

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Hon'ble Vivek Kumar Birla,J.

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Heard Sri Gulrez Khan, learned counsel for the petitioner, learned standing counsel for respondent Nos.1 and 2 and Sri M.P.Yadav holding brief of Sri Kamta Prasad, learned counsel appearing for contesting respondent No.3.

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Counter and rejoinder affidavits have been exchanged and with the consent of the parties, the writ petition is being disposed of at the stage of admission itself.

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While entertaining the present writ petition following order was passed on 20.3.2018 reiterating the arguments:-

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"Heard Sri Gulrez Khan, learned counsel for the petitioner and the learned Standing Counsel for the respondents no.1 and 2.

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The petitioner in the writ petition is seeking quashing of the orders dated 20.09.2017, 27.11.2017 and 17.01.2018.

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By the order dated 20.09.2017 the Prescribed Authority has held that the election petition is maintainable. It appears that one of the objection was with regard to maintainability on the ground that Rs.50 had not been deposited in the personal account of the Gram Panchayat and therefore the election petition itself is not maintainable. On this issue prima facie there does not appear to any finding of the Prescribed Authority.

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Secondly, the Prescribed Authority has held that Rule 12C (3) does not state whether the procedure prescribed in the Code of Civil Procedure, 1908 is to be followed or is not to be followed.

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In my opinion, the order of the Prescribed Authority prima facie is thoroughly misconceived since the Rule 4 of the Uttar Pradesh Panchayat Raj (Settlement of Election Disputes) Rules, 1994 clearly provides that every election petition shall be decided 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 after framing issues.

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Learned counsel for the petitioner also placed reliance upon the judgement of the Supreme Court reported in AIR 2001 SC 490, Makhan Lal Bangal Vs. Manas Bhunia and Others.

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The matter requires considerations.

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Issue notice to the respondents no.3 to 9 returnable within six weeks. The petitioner shall take steps for service on the respondents no.3 to 9 within one

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week.

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All the respondents may file their counter affidavit within six weeks.

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List on 07.05.2018.

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There is no averment in the writ petition as to what happened on 19.01.2018 which was the date fixed for delivery of judgement but Sri Gulrez Khan, learned counsel for the petitioner states that he has instructions from the petitioner, who states that till date no final order has been passed in the election petition.

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In this view of the matter, since no final order has been passed in the election petition, the impugned orders dated 20.09.2017, 27.11.2017 and 17.01.2018 shall remain stayed till the next date of listing."

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Submission of learned counsel for the petitioner is that there is no finding on deposit of Rs.50/- in the personal account of Gram Panchayat and that Rule 4 of the Uttar Pradesh Panchayat Raj (Settlement of Election Disputes) Rules, 1994 clearly provides that the provision of theC.P.C. are applicable and, therefore, framing of issues is also necessary. It was further submitted that the impugned order on the issue of electoral role has not been properly decided in view of the observation made by this Court in its order dated 18.9.2017, passed in the Matters Under Article 227 No.5755 of 2017, Smt. Naseem Bano vs. State of U.P. and 8 other. Submission is that no voter list was annexed with the election petition, which was necessary.

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In support of his argument that Rs.50/- has not been deposited, learned counsel for the petitioner has placed reliance upon a copy of the bank statement of the Gaon Sabha w.e.f. 1.1.2016 to 31.12.2016 that this amount of Rs.50/- was in fact not deposited, hence the election petition is not maintainable.

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Per contra, learned counsel for the contesting respondent drawing attention to the challan of deposit dated 11.1.2016 at page 60 of the counter affidavit submitted that the stamp of Rs.50/- was duly deposited in the personal account of the Gram Sabha.

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On perusal of the impugned order, I find that in the impugned order dated 20.9.2017 no specific finding in regard to deposit of such amount of Rs.50/validly made, has been given whereas this was the specific case of the petitioner. Apart from that, in the impugned order, it has been incorrectly held that the provision of the C.P.C. are not applicable.

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In so far as filing of the voter list is concerned, the petitioner has claimed that no such voter list has been annexed with the petition whereas the learned counsel for the contesting respondent submits that a copy of the voter list was duly annexed with the petition.

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However, I find that no finding in this regard has been recorded in the impugned order and only this much is stated that there is no provision for compliance of the provision of the C.P.C..

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In such view of the matter, I find that the impugned order is not sustainable in the eyes of law, the same is hereby quashed.

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The writ petition is allowed.

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The matter is remanded back to respondent No.2, the prescribed authority, for deciding the question of maintainability afresh in the light of judgment of this Court dated 18.9.2017 passed in the Matters Under Article 227 No.5755 of 2017, Smt. Naseem Bano vs. State of U.P. and others, after taking into account all the objections raised by the petitioner and recording specific finding in this regard. This exercise may be done preferably within a period of one month from the date of production of a certified copy of this order.

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Order Date :- 15.11.2018 AKJ

smt. naseem bano v. State of U.P. and 8 others

Case brief

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smt. naseem bano v. State of U.P. and 8 others

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