Hon'ble Pankaj Mithal, J.- - (1.) THIS First Appeal has been filed under Rule 49 of the U.P. Kshettra Panchayat and Zila Pancyayat (Election of Pramukhs and Up-Pramukhs and Settlement of Disputes) Rules, 1994 against the judgment and order dated 27.7.2011 passed by the Additional District and Sessions Judge Court No. 1, Mau dismissing the election petition No. 8 of 2010 (Devendra Kumar Yadav v. Sanjay Patel and others) with cost on the ground that it was not presented in person by the petitioner as required under Rule 35 (2) of the aforesaid Rules.
(2.) THE election to the post of Pramukh of Kshettra Panchyat Badraon, District Mau was held on 22.10.2010. THE contest in the election was between the appellant Devendra Kumar Yadav and the respondent No. 3 Sanjay Patel only. THE electoral college comprised of 78 Kshettra Panchayats members. Both the candidates polled equal votes but by lottery respondent No. 3 Sanjay Patel was declared elected. Appellant Devendra Kumar Yadav questioned the above election vide election petition No. 8 of 2010 which was filed on 23.12.2010. In the written statement a specific objection was raised that the election petition was not presented in accordance with Rule 35 (2) of the Rules. It was presented by an advocate and as such was not legally maintainable. The Court below by the impugned order dated 27.7.2011 held that the petition was not presented by the appellant himself and as such was not validly presented as contemplated by Rule 35 (2) of the Rules. It was accordingly dismissed.
(3.) I have heard Sri K.N. Tripathi, Senior Advocate assisted by Sri Mukesh Prasad, learned counsel for the appellant and Sri Sri Anil Kumar Singh, learned counsel appearing for respondent No. 3. Respondent Nos. 1 and 2 are formal parties and are represented by the learned Standing counsel. Assailing the impugned judgment and order Sri Tripathi has made three submissions; first, the appellant was personally present when the petition was presented and the issue as to whether the petition was presented by him in person or not is a mixed question of fact and law which could not have been decided without allowing the parties to adduce evidence; secondly, the Court is not correct in dismissing the petition in view of the decision of the Supreme Court in the case of G. V. Sreerama Reddy and another v. Returning Officer and others, AIR 2010 SC 133 as the said decision is in respect of the Representation of the People Act, 1951 whereunder consequences for improper presentation of the petition have been provided which are absent in the present Rules; lastly, the appellant was also present in the Court on the next date fixed ie. 12.1.2011, which was within the period of limitation of 30 days provided for presenting the petition and his presence before the Court within time prescribed for presentation of the petition would mean that the appellant has presented the petition in person.;