ATTAU RAHMAN MASOODI,J. - (1.) This application under Order XLI Rule 21 of Code of Civil Procedure read with Chapter IX Rule 17 (2) of Allahabad High Court Rules, has been filed for setting aside the order/judgement passed by this Court on 17.8.2016 in the present first appeal.
(2.) Having regard to the nature of dispute involved in the First Appeal being a pure question of law, the Court proceeded to decide the same by remitting the matter back to the court below for consideration of the issue of limitation afresh by putting the parties to a notice in the light of observations made. In effect, none of the parties was put to any prejudice insofar as the rule of opportunity is concerned. The application for setting aside the ex-parte judgement is also not questioned on any such prejudice being caused but a legal question as to the very maintainability of first appeal against an order passed under Section 27 of the U.P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961, has been raised in the application seeking to recall/ set aside the order so passed. Sri H.G.S. Parihar, learned Senior Counsel, assisted by Smt. Meenakshi Parihar Singh has put forth an interesting argument in the light of Section 27 of U.P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 and the Court hastens to reproduce the same as under: "27. Disputes as to membership or disqualification -- (1) If any dispute arises as to whether a particular person is a member of the Zila Panchayat under clause a of Section 18, the dispute shall be referred in the manner prescribed to the State Government and the decision of the State Government shall be final and binding. (2) If a dispute arises as to whether a person-- (a) has been lawfully chosen a member of a Zila Panchayat under Section 18; or (b) has ceased to remain eligible for being chosen a member of of the Zila Panchayat for the purposes of Section 20; or (c) has become disqualified to be Adhyaksha for the purposes of Section 19, the dispute shall be referred in the manner prescribed to the Judge whose decision shall be final and binding."
(3.) On the premise of aforesaid provision, it is urged that the election petition was admittedly filed by the appellant under Section 27 but a proceeding contested under Section 27 on a decision being rendered, attains finality and such a decision is not amenable to appellate jurisdiction of this Court by virtue of Rule 47 of the U.P. Zila Panchayats (Election of Adhyaksha and Up-Adhyaksha and Settlement of Election Disputes) Rules, 1994, which conceives the appeals to be filed against the orders passed under Rule 40 of the said rules. In other words, the decision rendered under Section 27 (2)(c) by the competent judge is final.;