Pankaj Naqvi, J.
1. Heard Shri Bhoopendra Nath Singh, learned Counsel for the petitioner and learned standing Counsel.
The Petitioner/Ram Sewak Singh challenges the correctness of order dated 6.2.2014 passed by Election Tribunal/Sub Divisional Officer, Chail, Kaushambi in Election Petition No. 16 of 2010, declining to try an issue as a "preliminary issue".
Ram Suchit/respondent No. 2, filed an election petition u/s 12-C of the U.P. panchayat Raj Act, 1947 (short "the Act") challenging the election of writ petitioner as Gram Pradhan. On 23.11.2013, an application was filed by writ petitioner for framing two preliminary issues which are extracted herein:
However, on 21.12.2013, following issue was framed:
2. The Election Tribunal vide impugned order dated 6.2.2014 declined to try the issue framed on 21.12.2013 as a preliminary issue.
3. It wa
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s vehemently contended by learned Counsel for the petitioner that a treasury challan deposit is a sine-qua non to the filing of the election petition, in terms of Rule 3(1) of U.P. Panchayat Raj (Settlement of Election Disputes) Rules, 1994 and if the same is not deposited in an appropriate head of the Gaon Sabha, maintainability of the election petition itself becomes incompetent, thus the said issue ought to have been tried as a "preliminary issue". He in support of his contention relies on a Full Bench judgment of this Court in the case of Kedar Nath Vs. S.N. Misra and Another, and that of Ansar Ahmad Vs. Sub-Divisional Officer, Kairana and others, . He further submitted that election petition is to be filed in the mode and manner prescribed in the statute, which admits of no exception and once there was a departure, the petition ought to have been dismissed at the threshold.
4. Section 12-C of the Act provides that election of a Pradhan and other specified persons can only be questioned by an election petition presented before such authority, within such time, and in such manner as may be prescribed on specified grounds. In exercise of the powers conferred by section 110 read with sections 12-C and 12-D of the Act, the State Government has framed U.P. panchayat Raj (Settlement of Election Dispute) Rules, 1994. Rule 3 is extracted hereunder:
3. Election Petition--(1) An application under sub-section (1) of section 12-C of the Act shall be presented before the Sub Division Officer, within whose jurisdiction the concerned Gram Panchayat lies, within ninety days after the day on which the result of the election questioned is announced and shall specify the ground or grounds on which the election of the respondent is questioned and contain a summary of the circumstances alleged to justify the election being questioned on such ground:
Provided that no such application shall be entertained unless it is accompanied by a treasury challan to show that the amount of rupees fifty has been deposited in the personal Ledger Account of the Gram Panchayat concerned as security.
A perusal of Rule 3 would manifest that the election petition is to be inter-alia presented before the Sub Divisional Officer of the Gram Panchayat concerned within a prescribed period. However, proviso appended thereto provides, that no application shall be entertained unless it is accompanied by a treasury challan to show that an amount of Rs. 50/- has been deposited in the personal ledger account of Gram Pradhan concerned as security.
It is not the case of petitioner that the said amount was not deposited, rather the submission is that the amount was not deposited in the appropriate head of the Gaon Sabha, thus the election petition itself, was not ex facie maintainable.
5. In terms of Rule 4 of 1994 Rules, provisions of the CPC are made applicable for trial of the election petitions. Rule 2 of Order XIV of the Code provides for disposal of preliminary issues. The said provision reads as under:--
2. Court to pronounce judgment on all issues.--
(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to--
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.
A perusal of clause 2 of Rule 2 of Order XIV of the Code would indicate that an issue of law could be tried as a preliminary issue, only if it relates either to the jurisdiction of the Court or a bar to the suit created by any law for the time being inforce and for that purpose may if it thinks fit, postpone the settlement of other issues until after that issue has been determined.
6. A Full Bench of this Court in the case of Sunni Central Board of Waqfs v. Sri G.S. Visharad 1990 (8) Lucknow Civil Decisions 417 has already held that apart from aforesaid two pleas i.e. of jurisdiction and of a bar created by law, no other issue could be tried as a preliminary issue. This position remains unaltered even after amendment of the Code in 2002. Relevant paragraphs 9 and 30 of the said judgment reads as under:--
9. The word "shall" used in old Order XIV Rule 2 has been replaced in the present Rule by the word "may". Thus now it is discretionary for the Court to decide the issue of law as a preliminary issue or to decide it along with the other issues. It is no longer obligatory for the Court to decide an issue of law as preliminary issue.
30. We have observed hereinabove that after the amendment brought about in the year 1976 it is discretionary with the Court to take up an issue as a preliminary issue. The Court is not bound to take up any issue as a preliminary issue. All judicial discretions have to be exercised reasonably. Reasonable exercise of discretion in the present case dictates us against taking up issues 3 and 5 (f) as preliminary issues.
7. One of the questions referred in Kedarnath (supra) was:--
(1) Whether an election petition u/s 12-C of the U.P. Panchayat Raj Act could be transferred by the Collector u/s 228 of the Land Revenue Act to an Assistant Collector not in charge of a subdivision for disposal and has such an Assistant Collector jurisdiction to entertain and hear the election petition?
8. The background facts in Kedar Nath (supra) was that an election petition u/s 12-C of "the Act" was transferred by Sub Divisional Officer to an Officer who was not a Sub Divisional Officer but a Judicial Officer. There the State defended the impugned order of transfer of election petition on the premise of section 228, U.P. Land Revenue Act but the same was repelled. How-ever, power of the Collector to transfer an election petition was held to be u/s 192 of U.P. Land Revenue Act, 1901.
9. In the present case, election petition was transferred before the Sub Divisional Officer, Kaushabmi by District Magistrate/Collector i.e. the competent authority u/s 192 (as earlier Rule 25 of U.P. panchayat Raj Rules stood deleted in 1994 itself). Thus this Court is of the view that the law laid down in the case of Kedar Nath (supra) would have no application to the facts of the present case. Further case of Ansar Ahmad (supra) cited by learned Counsel for the petitioner is an authority on the issue that an election petition u/s 12-C of the Act has to be filed in a prescribed manner. There could be no dispute to this proposition. But it nowhere holds that issue of non deposit of security deposit, in an election petition, is only to be tried as a preliminary issue, especially when there is a dispute as to whether a deposit in a "Zila Nidhi" would ensure to the benefit of election petitioner, which was an issue dependant on evidence.
10. The impugned order reflects that there is a dispute between the parties as to whether a deposit of a treasury challan in "Zila Nidhi" would enure to the benefit of election petitioner or not. This is a question of fact and evidence. According to the Tribunal election petition is at advanced stage of hearing wherein evidence has already been recorded. Thus the Tribunal was of the view that this issue will be tried along-with other issues.
11. Thus the Tribunal both on facts and law rightly declined to try a preliminary issue. Moreover as stated by the Tribunal as the case is at the stage of hearing, wherein evidence is complete, the said issue will be tried alongwith other issues. Neither any prejudice/miscarriage of justice could be demonstrated by the petitioner, in the view taken by the Tribunal.
12. No other plea is urged. The writ petition lacks merits and is dismissed. No order as to costs.