SHIV RANI Vs. DISTRICT JUDGE

JUDGEMENT

(1.) Heard Sri Vikrant Pandey, learned Advocate in support of this petition and Sri Wasim Alam, learned Standing Counsel ably assisted by Sri Govind Saxena, learned Brief Holder, who appeared/argued as State Counsel to assist the court.

(2.) By means of this writ petition challenge is to the order of the learned District Judge, Mainpuri dated 27.9.2006 by which revision filed by the petitioner was dismissed and the order dated 3.8.2006 passed by the Sub Divisional Magistrate, Bhogaon/Election Tribunal by which petitioner's application for dismissal of the election petition for want of notice under Section 80 C.P.C. and the notice under Section 106 of the U. P. Panchayat Raj Act, 1947 has been rejected.

(3.) Before proceeding to deal with the submission so advanced, a brief notice of small undisputed facts will be necessary. Petitioner happens to be winning candidate on the post of Pradhari, Gram panchayat, Rajwana, Tehsil Bhogaon, district Mainpuri in the election held in the year 2005 of which result was declared on 29.8.2005. Challenging the election of the petitioner, election petition v/as filed on 22.9.2005 by the respondent No. 3, impleading the petitioner as main contesting opposite party and three other candidates in the election as opposite parties 2 to 4 besides the Returning Officer and the Assistant Returning Officer as opposite party No. 5 and 6. The relief sought in the election petition is that election of the opposite party No. 1 who is the petitioner here be declared to be illegal. An application was filed by the election petitioner on 22.9.2005 itself that as the limitation for filing the election petition is only three months a notice, if required to be given under Section 80(2) C.P.C. and Section 106 of the U. P. Panchayat Raj Act be waived and election petition be entertained. After hearing the arguments in this respect permission was granted on 22.9.2005 itself. The opposite party No. 1/petitioner appeared in the proceeding only after the service by way of publication and on 7.2.2006 written statement was filed. Election petitioner filed application on . 16.5.2006 that issue of recounting be decided and recounting be directed. Thereafter on 26.6.2006 and 3.7.2006 opposite party No. 1/petitioner filed application that election petition be dismissed for want of notice under Section 80 C.P.C. and notice under Section 106 of the U. P. Panchayat Raj Act. The election tribunal after hearing arguments of both sides by the order dated 3.8.2006 rejected the application filed by the election petitioner for recounting of the votes and at the same time rejected the application filed by the opposite party/petitioner for dismissal of the election petition for want of both notices mentioned above. The order of the Tribunal was challenged in revision which was dismissed by the learned District Judge by judgment dated 27.9.2006 and thus both the orders are under challenge in this petition.