PRASENJIT MANDAL,J. - (1.) THIS application is at the instance of the opposite party and is directed against the Order No.36 dated December 23, 2010 passed by the learned Civil Judge (Junior Division), in Misc. (Elections) Case No.07 of 2008. The opposite party/petitioner herein was the successful candidate in the last Panchayat General Election held in 2008 as a candidate of Dinhata Village-II Gram Panchayat. The opposite party No.1 herein filed an application under Section 204 of the West Bengal Panchayat Act, 1973 for cancellation of the result of the said Gram Panchayat Election and also for declaration that the opposite party no.1 herein be declared as winner. That application was converted into the misc. case being Misc. (Elections) Case No.07 of 2008 before the learned Civil Judge (Junior Division), Dinhata.
(2.) THE petitioner herein contested the said case denying material allegations raised in the election petition. It is his specific case that the process of counting and then toss in the case of tie had been done in presence of both the parties and at that time, no objection was raised by the opposite party No.1. So, the application is misconceived and not maintainable. The application should, therefore, be dismissed. By the impugned order, the learned Judge has allowed the application declaring the opposite party no.1 as elected. Being aggrieved by that order, this application has been preferred. Now, the question is whether the impugned order should be sustained. Upon hearing the learned Counsel for the parties and on going through the materials-on-record, I find that the learned Trial Judge has dealt with the said misc. case on the basis of the evidence adduced by both the parties in support of their contentions. In order to search for the truth in the matter, a Commissioner was appointed and he counted and thoroughly checked the ballot papers and then he submitted a report. On the basis of the report and other materials-on-record, the learned Trial Judge allowed the said misc. case declaring the opposite party No.1 as winner of the case.
(3.) SO far as the fact of the above matter is concerned, Mr. Milan Ch. Bhattacharya, learned Senior Advocate appearing for the petitioners, did not argue on the findings arrived at by the learned Trial Judge. He has argued as to the maintainability of the said election application. On perusal of the impugned order and the records as a whole, it does not appear that the question of maintainability was ever raised on the points as mentioned before this Bench in the Court of the learned Trial Judge. Mr. Bhattacharya has contended that the learned Trial Judge has dealt with the said application as one under Section 204 of the West Bengal Panchayat Act, 1973, but, the said Section has been amended in the year 2003 and a new procedure has been adopted and the application should be one under the provisions of Section 79 of the Act of 2003 and an amount of Rs.50.00 is to be deposited. So, unless and until the Section 79 is not complied with, the learned Trial Judge is not competent to invoke the jurisdiction of the Court. In support of his case, Mr. Bhattacharya has referred to the decision of Naziram 's case reported in 1936 Privy Council 253.;