PREMLATA Vs. RAJENDRA PATI AND ANOTHER

JUDGEMENT

(1.) This is a petition under Art. 226 of the Constitution of India by Smt. Premlata for the issue of a writ of certiorari to quash the order dated 31-8-1956 of the Sub-Divisional Officer, Shikohabad, respondent no. 2, whereby the election petition of Rajendra Pati Yadav, respondent no. 1, against the election of 'the petitioner as Pradhan of the Gaon Sabha of Bharaul was allowed, the election of the petitioner was set aside and a casual vacancy was declared to be filled in by a fresh election.

(2.) One of the points raised against the maintainability of the election petition was that it had not been properly presented. The learned Sub-Divisional Officer recorded a finding that the rules permitted the presentation of an application under Sec. 12-C of the U. P. Panchayat Raj Act, 1947, that is, an election petition, by the counsel for the applicant. In the present case, the election petition had not been presented by Rajendra Pati Yadav, but was presented by his counsel before the Sub Divisional Officer Shikohabad. The question of the maintainability of the election petition has also been raised in the present proceeding. The question for consideration, therefore, is if an election petition under Sec.. 12-C must be presented by the candidate in person or presentation by his counsel can be considered to be proper.

(3.) Under Rule 25 (1) of the U.P. Panchayat Raj Rules every election petition has to be tried, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits. This general clause is subject to the restriction that any provision contrary to the provisions of the U.P. Panchayat Raj Act or the rules contained in Chapter I-F of the U.P. Panchayat Raj Rules shall not be applicable. The trial of a suit starts after the presentation of the plaint, and consequently the provisions contained in the Code of Civil Procedure for the presentation of plaint will not apply to election petitions. It may, however, be mentioned that the provisions of the Code of Civil Procedure make a differentiation between the party and his agent. Certain specified acts have to be done by the party concerned in person, for example, an application to sue in forma pauperzs, but for other acts no clear provision has been made suggesting thereby that such acts can be done either by the party himself or by his agent.