Rajiv Sharma- - (1.) HEARD Sri Umesh Chandra, senior advocate, duly assisted by Sri S. B. Pandey and Sri Rakesh Kumar Srivastava for the petitioner and Sri G. K. Mehrotra assisted by Sri Anupam Mehrotra for the respondent No. 3 and the learned standing counsel for the respondent Nos. 1 and 2.
(2.) BY means of the instant writ petition, the petitioner is assailing the order dated 15.3.2007, passed on application Nos. C-27 and C-33 in an Election Petition No. 2 of 2006, by Additional District Judge, Court No. 1, Lucknow. It has been stated by the learned counsel for the petitioner Sri Umesh Chandra that in an election for the post of Mayor of Lucknow, the petitioner was declared elected by defeating respondent Nos. 3 to 18. The said election was challenged by the respondent No. 3 by preferring an election petition before the District Judge, Lucknow and the District Judge, Lucknow, after admitting issued notices to the respondents fixing 19.12.2006 and also transferred the said election petition before the Additional District Judge, Court No. 1, Lucknow for proceeding further with the petition. A preliminary objection as regards maintainability of the election petition has been taken by the petitioner by filing two separate applications, which were numbered as C-27 and C-33 before the Additional District Judge. The same were contested by respondent No. 3, who has filed the objections to the said applications and the Additional District Judge, Court No. 1, Lucknow, after hearing the arguments advanced by the counsel for the parties rejected both the applications by means of order dated 15.3.2007. The order dated 15.3.2007 is being assailed by the petitioner in the instant writ petition.
(3.) MR. G. K. Mehrotra, appearing on behalf of respondent No. 3, raises a preliminary objection that the petitioner has got equally efficacious alternative statutory remedy by preferring an appeal under Adhiniyam 74 of the Uttar Pradesh Municipal Corporation Adhiniyam, 1959 and even otherwise the writ petition is not maintainable against the interlocutory order under Article 226 of the Constitution of India. He further submits that the petitioner is adopting delaying tactics by not filing written statement in the said election petition and instead preferred the instant writ petition, as such, an attempt has been made to scatter the hearing of decision of the election petition. He further submits that the submission advanced by the petitioner before the Additional District Judge, Lucknow in support of the applications are : "(1) Non-compliance with the U. P. Municipal Corporations Adhiniyam, 1959 ("Adhiniyam") and Rule 8 of the Rules framed under Section 79 thereof, namely, U. P. Nagar Mahapalika Nirwachan Yachikaon Ki Niyamawali, 1959, ("the Rules") ; (2) Non-compliance with Order VII, Rule 14 (1) of C.P.C. for the reason that documents on which election petitioner relies have not been entered in a list and have not been produced in the Court when the election petition was presented ; (3) Non-compliance with Order VII, Rule 14 (2) of C.P.C., since, as per writ petitioner/ respondent-1 of election petition, as regards the documents not in possession or power of election-petitioner, it is not stated in election petition in whose possession or power the said documents are ; (4) Order VII, Rule 14 (3) of C.P.C. was referred to in support of the contention that documents, which have not been entered into a list and not produced in Court at the time of presentation of petition, can be entertained only with leave of the Court ; (5) The photocopies of documents annexed to election petition are inadmissible in evidence. It was also vaguely alleged that some of them are illegible, but no illegible copy was specified ; (6) The election petition was not filed within limitation prescribed by Section 61 (2) of Adhiniyam, since, as per the writ petitioner/ respondent-1 of election petition, the election petition that was filed within the prescribed period was not in accordance with law due to non-compliance with Order VII, Rule 14 and Order VI, Rule 15 of the C.P.C. and was not a petition in eyes of law. (Thus, as per writ petitioner/ respondent-1 of election petition, it is the respondent to a case who will determine the merit of the case and if he finds that the case is lacking in merit or not filed in accordance with his perception of law, the case would be liable to be dismissed for limitation, not on merits!) (7) The election petition was said to be in violation of Order VI, Rule 15 and Order XIX, Rules 5 and 9 of the C.P.C., which make provisions regarding affidavit. (8) The alleged violation of Order VII, Rule 14 and Order VI, Rule 15 of the C.P.C. attracted dismissal of election petition under Section 66 of the Adhiniyam. (Section 66 provides for dismissal of election petition if not presented within time or if it does not comply with the provision made under Section 79 relating to deposit of security or court fees payable is not furnished within the time allowed.) and the same were fully considered by the Additional District Judge, Court No. 1, Lucknow, in his order dated 15.3.2007. An argument has also been advanced by Sri G. K. Mehrotra with regards to the conduct of the petitioner.;