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Yaseen Khan Vs. the Sub-divisional Officer, Amroha, Moradabad and anr. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 1123 of 1956
Judge
Reported inAIR1958All511
ActsUttar Pradesh Panchayat Raj Act, 1947 - Sections 12C; Constitution of India - Article 226
AppellantYaseen Khan
RespondentThe Sub-divisional Officer, Amroha, Moradabad and anr.
Appellant AdvocateIqbal Ahmad, Adv.
Respondent AdvocateBhagwan Das Gupta, Adv. and ;Standing Counsel
DispositionPetition allowed
Excerpt:
election - disposal of election petition - section 12c of u.p. panchayat raj act, 1947 - application under section 12c must specify the grounds upon which election is challenged - election tribunal has no jurisdiction to allow an election petition on a ground not raised in the election petition itself.  - .....on 22-3-1956 the learned sub-divisional officer allowed the election petition, set aside yasin khan's election and directed that fresh election be held. hence this petition by yasin khan. 2. a perusal of the order dated 22-3-1958 shows that, the election petition was allowed on the ground that the place of polling was altered without proper notice to the voters. the main: point raised in the present petition by yasin khan is that, the point relied upon by the learned sub-divisional officer was not raised in the election petition at all. the point has not been denied in the counter-affidavit filed by chhiddu khan. the learned sub-divisional officer himself wrote in his order that, the ground was not taken in writing but was taken before him in arguments. the question, therefore,.....
Judgment:
ORDER

V.G. Oak, J.

1. This petition for the issue of a writ in the nature of certiorari is directed against an order of the learned Sub-Divisional Officer, Amroha allowing an, election petition. Yasin Khan petitioner and Chhiddu Khan (opposite party No. 2) were candidates for the post of Pradhan of Gaon Sabha of village Salarpur Khalsa, Pargana Amroha, district Moradabad. The Returning Officer declared Yasin Khan elected to the post of pradhan. Chhiddu Khan filed an election petition. On 22-3-1956 the learned Sub-Divisional Officer allowed the election petition, set aside Yasin Khan's election and directed that fresh election be held. Hence this petition by Yasin Khan.

2. A perusal of the order dated 22-3-1958 shows that, the election petition was allowed on the ground that the Place of polling was altered without proper notice to the voters. The main: point raised in the present petition by Yasin Khan is that, the point relied upon by the learned Sub-Divisional Officer was not raised in the election petition at all. The point has not been denied in the counter-affidavit filed by Chhiddu Khan. The learned Sub-Divisional Officer himself wrote in his order that, the ground was not taken in writing but was taken before him in arguments. The question, therefore, arises whether an election petition can be allowed on a point not raised in the election petition itself.

3. Section 12-C of the U. P. Panchayat Raj: Act, 1947 provides for an application for questioning elections. Sub-section (1) of Section 12-C runs thus :

'The election of a person as Pradhan of a Gaon Sabha .....shall not be called in question except by an application presented to such authority within such time and in such manner as may be prescribed on the ground that .....'

It will be noticed that Section 12-C makes it clear that, an election of the Pradhan cannot be called in question except by an election petition. Obviously such an election cannot be called in question verbally. It is further laid down in Section 12-C that, the election petition must specify the ground on which the election is challenged.

4. Rule 24 of the U. P. Panchayat Raj Rules deals with, the form and presentation of the application. Sub-rule (1) off Rule 24 lays down that an application under Sub-section (1) of Section 12-C of the Act shall specify the ground or grounds on which the election of the respondent is questioned.

5. Mr. B. D. Gupta appearing for the opposite party No. 2 urged that, it is open to a Sub-Divisional Officer to allow an election petition on a point not raised in the petition. He referred to Sub-rule (3) of Rule 25 of the U. P. Panchayat Raj Rules. Rule 25 deals with the hearing of the petition. Under Sub-rule (3) of Rule 25, the Sub-Divisional Officer is empowered to make certain declarations. The proviso to Sub-rule (3) lays down that, no such declaration shall be made unless a claim for it has been made in application. Sub-rule (3) has nothing to do with the grounds upon which a declaration may be made.

6. Section 12-C confers jurisdiction upon the prescribed authority for interfering with elections. The prescribed authority cannot interfere with the election of a Pradhan except as laid down in Section 12-C. Section 12-C requires that he challenge must be made by an application, and that such application must specify the grounds upon which the election is challenged. It is clear that the prescribed authority cannot interfere with the election except as laid down in Section 12-C of the Act. The Election Tribunal has no jurisdiction to allow an election petition on a ground not raised in the election petition itself. It is not open to a party to raise a ground verbally, and it is not open to the Election Tribunal to allow the election petition on a new point so raised.

7. It follows that the learned Sub-Divisional Officer acted beyond his jurisdiction in allowing the election petition on a new point raised during arguments before him. The mistake is apparent on the face of the record. It is, therefore, a fit case for the grant of a writ in the nature of certiorari.

8. The result of allowing this petition will simply be the cancellation of the order dated 22-3-1956. The election petition will not thereby be completely wiped out.

9. The petition for the issue of a writ in the nature of certiorari is allowed. The learned Sub Divisional Officer's order dated 22-3-1956 is quashed. The learned Sub-Divisional Officer will be at liberty to deal with the election petition in accordance with law. The petitioner will get his costs from Chhiddu Khan (opposite party No. 2). The opposite parties shall bear their own costs.


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