MAHABIR SINGH Vs. STATE OF U P

JUDGEMENT

(1.) THE facts giving rise to-this petition under Article 226 of the Constitution of India lies in a narrow compass. Election to the office of Pradhan of Gaon Sabha Haibatpur, Nyaya Panchayat Mohrena, Block and Tahsil lglas, district Aligarh, was held on 1-7-1988 in which Aditya Kr. Singh was declared elected. After the declaration of the result the petitioner has filed an election petition under section 12-C of the U. P. Panchayat Raj Act (hereinafter referred to as the Act) before the Prescribed Authority,.Iglas, District Aligarh, respondent no. 2 for setting aside the election. THE election of respondent no. 5 has been challenged by the petitioner on the ground that he has not attained the age of thirty years on the date of filing of his nomination and as such he was not qualified to be elected. In the election petition the petitioner moved an application on July 15, 1988 praying therein that respondent no. 5 may be restrained from assuming the charge of the office of Pradhan during the pendency of the election petition, a copy of which has been filed as Annexure 4 to the writ petition. THE said application was rejected by the Sub-Divisional Officer, Aligarh by order dated 15th July 1988 on the ground that "there is no provision as per law" for grant of interim relief a copy of which was filed as Annexure 5 to the writ petition.

(2.) THE petitioner feeling aggrieved against the order passed by the Sub- Divisional Officer dated 15-7-88 refusing to grant interim relief has approached this Court.

(3.) IN the case of Rameshwar Dayal (supra) it was contended on behalf of the petitioner that a Sub-Divisional Officer has got all the powers conferred upon Courts by sections 94 and 151, and Order 39, rule 2 and Order 41, rule 5 CPC. After considering the aforesaid contention at length with reference to section 12-C (4) of the Act and rule 25 the Division Bench held that "section 151 expressly speaks of "power" to make orders. Whatever may be said in respect of orders of a procedural nature, orders regarding matters not covered by the Code are not orders regarding procedure but are an exercise of power. INjunction is a relief according to section 52 and 53 of the Specific Relief Act, and a relief is a matter of power, not procedure. We are, therefore, of the opinion that a Sub-Divisional Officer hearing an election petition has not the powers conferred upon Civil Courts by sections 94 and 151 and Orders 39 and 41, CPC." The Division Bench further held that "even if the Sub-Divisional Officer had all the powers that are conferred by the CPC he could not grant the interim relief sought for". IN this view of the matter I am of the opinion that the decision of the Supreme Court in Manohar Lal (supra) has no relevance in the instant case and the contention of the learned counsel for the petitioner that the decisions in Rameshwar Dayal (supra) and Devi Sharan (supra) require reconsideration has no legs to stand.