MAHESH CHAUHAN Vs. ANIL

JUDGEMENT

(1.) This writ petition is directed against the order dated 3.3.2001 whereby the respondent No. 2 decided issue No. 7 holding that the election petition is maintainable and permitting the election petitioner to append a fresh verification of the election petition.

(2.) Briefly, stated the facts, are that the election from Ward No. 6. Gautam Budh Nagar for the membership of Zila Panchayat was held on 29.6.2000. The petitioner was declared elected by margin of 18 votes as against respondent No. 1. Respondent No. 1 filed election petition on 7.7.2000 in the Court of District Judge, Gautam Budh Nagar. The petitioner filed an application (29C) to dismiss the election petition on the ground that it was not maintainable. It was alleged that the election petition under the provisions of U. P. Zila Panchayat (Settlement of Disputes Relating Membership) Rules, 1994 (in short the Rules) can only be presented in person by the election petitioner, whereas the election petition was presented by one Sri R. K. Singh, advocate. It was further averred that the affidavit of Anil, the election petitioner, respondent No. 1 was sworn on 3.7.2000 at Delhi much before the presentation of the election petition. The District Judge rejected the application on 18.8.2000 on the finding that on the date of the presentation of the election petition, the election petitioner was present in person along with his counsel Sri R. K. Singh, advocate. The petitioner filed Writ Petition No. 40750 of 2000 in this Court. The writ petition was dismissed. It was, however, observed that if the petitioner raises a plea about the maintainability of the election petition in the written statement, an issue on the point shall be framed and it shall be decided by the learned District Judge or the transferee Court as a preliminary issue.

(3.) The District Judge, respondent No. 2 decided the preliminary issue holding that the election petition filed by respondent No. 1 was maintainable and permitted the election petitioner, respondent No. 1 to append a fresh verification to the election petition. The petitioner has challenged this order in the present writ petition.