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SMT. KARAURI DEVI versus SMT. SHARDA DEVI

High Court of Judicature at Allahabad

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Smt. Karauri Devi v. Smt. Sharda Devi - WRIT - C No. - 49426 of 2007 [2007] RD-AH 16451 (8 October 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No.21.

Civil Misc. Writ Petition No. 49426 of 2007.

Smt. Karauri Devi ...........Petitioner

Versus

Smt. Sharda Devi ...........Respondents.

:::::::::::

Hon'ble Ashok Bhushan, J.

Heard counsel for the petitioner and Sri S.P. Shukla appearing for the respondents.

By this writ petition, the petitioner has prayed for quashing the order dated 11th September, 2007 by which the District Judge has allowed the revision and remanded the matter to the Prescribed Authority for fresh decision.

The Prescribed Authority by his order dated 12th December, 2006 dismissed the election petition filed by the contesting respondent under Section 12-C of the U.P. Panchayat Raj Act, 1947 basically on two reasons. The first reason given by the Prescribed Authority was that contesting respondent had deposited Rs.50/- on 5th September, 2005 but the said deposit was not in the head of U.P. Panchayat Raj Nirvachan, hence due to non deposit of the said amount in the appropriate account, the election petition was liable to be dismissed. The second reason was that no case has been made out for directing recount of the votes. The Additional District Judge has allowed the revision holding that deposit of Rs.50/- has been made and only on the ground that it has not been made in the Account No.8443, it cannot be said that the election petition is not maintainable. With regard to second question, the revisional Court has held that the Prescribed Authority may examine the pleadings and evidence and take fresh decision.

Learned counsel for the petitioner contended that deposit of Rs.50/- in Account No.8483 was fatal and the election petition was rightly dismissed. He further contended that there are no pleading in the election petition nor any material for considering the case for recount. He submits that the Prescribed Authority has rightly recorded finding that there are no material for directing recount of votes.

The revisional Court while remanding the matter has not expressed any final opinion as to whether it was a case for recount or not. The revisional Court has only observed that the decision of the Prescribed Authority is not based on the evidence of the parties. The revisional Court has given cogent reasons for allowing the revision and remitting the matter to the Prescribed Authority. The finding of the revisional Court that non deposit of Rs.50/- in Account No.8443 is not fatal is also justified. There is no dispute that amount was deposited in Account No.8483. This issue has recently been considered in Civil Misc. Writ Petition No. 8470 of 2007 (Arun Kumar vs. The Prescribed Authority and others) decided on 7th March, 2007. While considering the similar contention, this Court laid down following:-

"Thus following the same analogy rule 3 (1) proviso in so far as it provides that the election petition shall not be entertained unless it is accompanied by the treasury challan to show that the amount of Rs. 50/- has been deposited is mandatory whereas the manner of deposit cannot be said to be mandatory failure of which may entail dismissal of the election petition . In case the deposit is shown for the purposes of the election petition for the Gaon Sabha in question substantial compliance is fully proved and the election petition need not be dismissed on the ground that the deposit is not in the particular account i.e. personal ledger account of the Gaon Sabha. The petitioner himself has filed treasury challan by which the amount was deposited in the State Bank of India by the petitioner for the purposes of election petition of village Mohinipur. The aforesaid deposit clearly makes out substantial compliance of rule 3 and the election petition is fully entertained on the strength of such deposit."

The deposit of the amount in Account No.8483 was substantial compliance of Rule 3(1) proviso and it cannot be said that non deposit was fatal. In so far as the question of recount is concerned suffice it to say that the matter has been remanded and it is left open for the Prescribed Authority to decide the matter after considering the materials on record. The question of recount has to be considered according to the pleadings and materials on record. It is open for the petitioner to contend before the Court below that no ground is made out for directing recount since the matter has been remitted to the Prescribed Authority. The matter having been remanded for fresh decision, I do not find it a fit case to be entertained in writ jurisdiction.

The writ petition is dismissed.

Date: 8.10.2007.

Rakesh


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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