Anshuman Singh - (1.) THE facts giving rise to this petition briefly stated are that election for the post of Pradhan of Gaon Sabha of village Bagaha, Post Office Mail, district Deoria was held on July 6, 1988 in which the petitioner was declared elected as Pradhan. Respondent no. 5 Hari Shankar alias Shiv Prasad, who contested the election and lost, challenged the election of the petitioner under section 12-C of the U. P. Panchayat Raj Act, 1947 (hereinafter referred to as the Act) before the Prescribed Authority/Sub-Divisional Officer, Salempur, district Deoria. THE petitioner appeared and filed his written statement and denied the allegations contained in the election petition. On December 13, 1988 an application was filed by respondent no. 5 before the Collector, Deoria, praying that the election petition filed by him may be transferred from the court of the Sub-Divisional Officer, Salempur, to some other officer. THE Collector, Deoria same day transferred the election petition from the court of the Sub-Divisional Officer, Salempur, to the Assistant Sub- Divisional Officer, Salempur, district Deoria camp at Deoria, without affording any opportunity of being heard to the petitioner. THE petitioner feeling aggrieved against the impugned order dated December 13, 1988 has come to this Court in the instant petition under Article 226 of the Constitution of India.
(2.) A counter affidavit has been filed in the present case on behalf of respondent no. 5. Counsel for the petitioner stated that he does not propose to file any rejoinder affidavit. With the consent of the counsel for the parties and as provided under the second proviso to rule 2 of Chapter XXII of the Rules of court this petition is being disposed of finally at the admission stage itself. Mr. R. B. Tripathi, learned counsel for the petitioner, urged that the order passed by the Collector transferring the election petition from the court of the Sub-Divisional Officer, Salempur, to the court of the Assistant Sub- Divisional Officer, Salempur camp at Deoria was wholly illegal and without jurisdiction and as such is liable to be quashed. Before deciding the controversy involved in the instant petition it is pertinent to mention the provision relating to the provision for deciding the election petition of a Pradhan as provided under the Act. Section 12-C of the Act provided that an application may be filed for quashing the election of a person as Pradhan of a Gaon Sabha or as member of a Goan Panchayat including the election of a person appointed as the Panch of the Nyaya Panchayat under section 43. Rule 24 of the U. P. Panchayat Raj Rules, 1947 (hereinafter referred to as the rules) framed under the Act provides that an application under sub-section (1) of section 12-C of the Act shall be presented before the Sub-Divisional Officer within whose jurisdiction the Sabha concerned lies within ninety days after the day on which the result of the election questioned is announced under the provisions of Chapter I-D or I-E as the case may be. From a perusal of rule 24 there is no room for doubt that it is only the Sub-Divisional Officer within whose jurisdiction the Gaon Sabha is situate has exclusive jurisdiction to try the election petition challenging the election of a Pradhan under section 12-C of the Act, and no other Sub-Divisional Officer and on the strength of the said rule counsel for the petitioner vehemently urged that since the fact that Gaon Sabha Bagaha lies within the jurisdiction of the Sub-Divisional Officer, Salempur, district Deoria is not disputed, it is only the Sub-Divisional Officer Salempur, who had exclusive jurisdiction to try the election petition.
(3.) COUNSEL for the respondent no. 5, Mr. S. N. Singh, on the other hand, contended that under rule 25 (1) (vi) the District Magistrate has been empowered to transfer an election petition under section 12-C of the Act for hearing to another Sub-Divisional Officer at any stage of the case on an application being made and as such the order passed by the Collector, Deoria is wholly legal and is liable to sustained. For deciding the aforesaid controversy it has become necessary to refer to the amendments made in rule 25 from time to time. It is admitted by the counsel for the parties that initially under rule 25 (1) (vi) of the rules the District Magistrate had been empowered to transfer a case under section 12-C of the Act at any stage for hearing from the court of the Sub-Divisional Officer to the court of another Sub-Divisional Officer other than the one in whose jurisdiction the Gaon Sabha did not situate. Subsequently by Notification no. 150-P/XXXIII-61 dated January 9, 1961 published in Gazette of U. P. Extraordinary dated January 9, 1961 page 1, sub-rule (1), clause (vi) of the proviso to rule 25 was deleted and after sub-rule (4) a new sub-rule (5) was added which runs as under :- "(5) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard or of his own motion without such notice or hearing, the District Magistrate may, at any stage, withdraw any application under sub-section (1) of section 12-C of the Act pending in the district for disposal and- (a) himself try or dispose of the same, or (b) transfer the same for trial or disposal to any Assistant Collector of the First class in the District, or (c) transfer the same for trial or disposal to the officer from whom it was withdrawn." From the aforesaid amendment it appears that the District Magistrate was empowered to transfer an election petition under section 12-C of the Act from the court of Sub-Divisional Officer within whose jurisdiction the Gaon Sabha was situate and could have either tried himself or sent to any Assistant Collector of the First class in the District or transferred the same for trial or disposal to the officer from whom it was withdrawn.;