AVDHESH MISHRA Vs. INCHARGE DISTRICT JUDGE DEORIA

JUDGEMENT

(1.) THE facts giving rise to this petition briefly stated are that election for the post of Pradhan of Gaon Sabha of village Bagaha, Post Office Mail, district Deoria was held on July 6, 1988 in which the petitioner was declared elected as Pradhan. Respondent no. 5 Hari Shankar alias Shiv Prasad, who contested the election and lost, challenged the election of the petitioner under section 12-C of the U. P. Panchayat Raj Act, 1947 (hereinafter referred to as the Act) before the Prescribed Authority/Sub-Divisional Officer, Salempur, district Deoria. THE petitioner appeared and filed his written statement and denied the allegations contained in the election petition. On December 13, 1988 an application was filed by respondent no. 5 before the Collector, Deoria, praying that the election petition filed by him may be transferred from the court of the Sub-Divisional Officer, Salempur, to some other officer. THE Collector, Deoria same day transferred the election petition from the court of the Sub-Divisional Officer, Salempur, to the Assistant Sub- Divisional Officer, Salempur, district Deoria camp at Deoria, without affording any opportunity of being heard to the petitioner. THE petitioner feeling aggrieved against the impugned order dated December 13, 1988 has come to this Court in the instant petition under Article 226 of the Constitution of India.

(2.) A counter affidavit has been filed in the present case on behalf of respondent no. 5. Counsel for the petitioner stated that he does not propose to file any rejoinder affidavit. With the consent of the counsel for the parties and as provided under the second proviso to rule 2 of Chapter XXII of the Rules of court this petition is being disposed of finally at the admission stage itself.

(3.) COUNSEL for the respondent no. 5, Mr. S. N. Singh, on the other hand, contended that under rule 25 (1) (vi) the District Magistrate has been empowered to transfer an election petition under section 12-C of the Act for hearing to another Sub-Divisional Officer at any stage of the case on an application being made and as such the order passed by the Collector, Deoria is wholly legal and is liable to sustained.