# Dinesh Kumar v. Prescribed Authority/ SDO Sadar, Mirzapur & Ors

- **Citation:** (2023) 8 ILRA 463
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-21
- **Case number:** Writ C No. 23513 of 2022
- **Bench:** Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-kumar-v-prescribed-authority-sdo-sadar-mirzapur-ors-50672
- **Pages:** 4

## Headnote

Raj Act, 1947, the application of the Code of
Civil Procedure is limited by Rule 4 of the Uttar
Pradesh Panchayat Raj (Settlement of Election
Disputes) Rules, 1994. The Sub - Divisional
Officer is not required to record evidence in full
and may restrict evidence to only what is
deemed relevant. Reliance on Order 18 Rule 4
CPC and Section 137 of the Evidence Act is
misplaced, as Rule 4 (Proviso ii & iv) forms a
complete special procedure which overrides the
general
provisions
of
CPC.
Earlier judgment in Arunesh Vs Prescribed
Authority/S.D.O. Gonda and Ram Adhar Singh
Vs District Judge not applicable being rendered
per incuriam as they did not consider the said
specific provisos.

Key Case Law Discussed:

## Text

8 All. Dinesh Kumar Vs. Prescribed Authority/ SDO Sadar, Mirzapur & Ors.
463
therein a declaration that he is so entitled,
and the plaintiff need not in such suit ask
for any further relief: Provided that no
court shall make any such declaration
where the plaintiff, being able to seek
further relief than a mere declaration of
title, omits to do so."

9. It is clear from Section 34 of the
Act, 1963, that power to grant or declare
status as the petitioner desires, vests
exclusively in Civil Court that is competent
enough to grant such decree.

10. Once the Apex Court in the case of
Jigya Yadav (supra) has emphasized upon
obtaining a declaration from a civil court
with regard to the name which a person
wants to adopt by choice, this Court cannot
take a different view and therefore deciding
this case on the same lines, the writ petition
is disposed off permitting the petitioner to
obtain a declaration from the civil court
with regard to her claim and once such a
declaration is obtained, she is at liberty to
approach the Board with appropriate
documents.

11. In case such requirements are
completed at the end of petitioner and the
representation
is
made
along
with
necessary
documents
through
proper
channel i.e. through Principal of the
College before the Board, the Board shall
consider the same in the light of ratio laid
down by the Apex Court in the case of
Jigya Yadav (supra).
----------
(2023) 8 ILRA 463
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.07.2023

BEFORE

THE HON'BLE ANISH KUMAR GUPTA, J.
Writ C No. 23513 of 2022

Dinesh Kumar ...Petitioner
Versus
Prescribed
Authority/
SDO
Sadar,
Mirzapur & Ors. ...Respondents

Counsel for the Petitioner:
Sri Abhishek Kumar Yadav, Sri Bhola Nath
Yadav, Sri Prem Prakash

Counsel for the Respondents:
C.S.C., Kanchan Keshri, Sri Kuldeep Mishra

Held:
In election petitions under the U.P. Panchayat
Raj Act, 1947, the application of the Code of
Civil Procedure is limited by Rule 4 of the Uttar
Pradesh Panchayat Raj (Settlement of Election
Disputes) Rules, 1994. The Sub - Divisional
Officer is not required to record evidence in full
and may restrict evidence to only what is
deemed relevant. Reliance on Order 18 Rule 4
CPC and Section 137 of the Evidence Act is
misplaced, as Rule 4 (Proviso ii & iv) forms a
complete special procedure which overrides the
general
provisions
of
CPC.
Earlier judgment in Arunesh Vs Prescribed
Authority/S.D.O. Gonda and Ram Adhar Singh
Vs District Judge not applicable being rendered
per incuriam as they did not consider the said
specific provisos.

Key Case Law Discussed:

1. Arunesh Vs Prescribed Authority/S.D.O.
Gonda, Writ C No. 2904 of 2004

2. Ram Adhar Singh Vs District Judge, 1985 All
WC 246

Petition dismissed with direction to the
Prescribed Authority to decide the pending
election petition expeditiously, preferably within
two months.

(Delivered by Hon'ble Anish Kumar
Gupta, J.)

1. Heard Shri Bhola Nath Yadav,
learned counsel for the petitioner and Dr.
464 INDIAN LAW REPORTS ALLAHABAD SERIES
Kuldeep Mishra, learned counsel for
respondent No.2 and Shri Surya Bhan
Singh, learned Standing Counsel appearing
for respondent Nos.1, 9, 10, 11 and 12.

2. The petitioner is aggrieved by the
impugned order dated 08.06.2022 passed
by the Sub Divisional Magistrate, Sadar,
Mirzapur in Case No.7424 of 2021, Surta
Nath @ Surat Nath Vs. Dinesh Kumar and
others, under Section 12-C of U.P.
Panchayat Raj Act, 1947, whereby an
application
of
the
petitioner
dated
27.04.2022 seeking cross examination of
the witnesses, has been rejected in view of
Rule 4 Proviso (ii) & (iv) of the Uttar
Pradesh Panchayat Raj (Settlement of
Election
Disputes)
Rules,
1994
(hereinafter referred as '1994 Rules).

3. Learned counsel for the petitioner
relied upon the judgment of this Court in
Writ Petition No.2904 of 2004 (Arunesh
Vs. Prescribed Authority/S.D.O. Gonda)
to contend that while recording the
evidence as per Rule 4 of 1994 Rules,
opportunity
of
cross-examination
is
required to be given.

4. He has further relied upon the
provision of Order 18 Rule 4 of the Code of
Civil Procedure, 1908 to contend that
evidence submitted by way of affidavit
cannot be taken on record without granting
an opportunity of cross- examination.

5. He has further relied upon the
Full Bench judgment of this Court in
Civil Misc. Writ Petition No.11079 of
1983, Ram Adhar Singh Vs. The
District Judge and others decided on
14.03.1985 reported in 1985 All.W.C. 246
and the provisions of Section 137 of the
Evidence Act to contend that the evidence
cannot be taken on record, without giving
an opportunity of cross examination.

6. On the other hand, learned
counsel for the respondent No.2 has
relied upon the proviso (ii) & (iv) of Rule
4 of Rules 1994 and contends that in the
election petition under U.P. Panchayat
Raj Act, 1947, application of Code of
Civil Procedure is permitted to the
limited extent. So far as recording of
evidence is concerned, the provision of
Code of Civil Procedure as contained in
Order 18 Rule 4 of CPC are not
applicable. He further submits that the
provisions of C.P. C. are general in nature
and the provisions of 1994 Rules are
special statute which shall prevail over
the general law.

7. Learned counsel for the Staterespondents submits that none of the
judgment cited by the learned counsel for
the petitioner deals with the proviso (ii)
and (iv) of the Rule 4 of 1994 Rules and
the 1994 Rules being the special law has
to prevail over the provisions of Code of
Civil Procedure.

8. Rule 4 of the Uttar Pradesh
Panchayat Raj (Settlement of Election
Disputes) Rules, 1994, reads as under:-

"4. Hearing of the petition.-(1)
Subject to the provisions of the Act and
these rules, every election petition shall be
tried by the Sub-Divisional Officer, as
nearly as may be, in accordance with the
procedure applicable under the Code of
Civil Procedure, 1908, for the trial of suits:

Provided that -

(i) the Sub-Divisional Officer may
hear the petitioner or his ocunsel and if he
finds that the petitioner has no substance,
8 All. Dinesh Kumar Vs. Prescribed Authority/ SDO Sadar, Mirzapur & Ors.
465
reject the same without the issue of any
notice to the opposite parties;

(ii) it shall not be necessary for
the Sub-Divisional Officer to reord the
evidence in full and he may maintain only a
memorandum of evidence produced by the
parties before him;

(iii) if there is a sole petitioner
and he dies, or there is a sole respondent
and he dies, the petition shall be abate;

(iv) the Sub-Divisional may allow
only such evidence to be produced as he
deems relevant for the purpose of deciding
the petition,

(v) the District Magistrate may at
any stage on sufficient cause being shown
transfer an application made under subsection (1) of Section 12-C for hearing to
another Sub-Divisional Officer;

(vi) an application not presented
within time or unaccompanied by a
treasury challan as required under sub-rule
(1) of Rule 3 may, at any time, be dismissed
by the Sub-Divisional Officer; and

(vii) the Sub-Divisional Officer
may, on an application of either party made
within five days after the date of his
decision, review his order.

(2) If the Sub-Divisional after
hearing finds in respect of any person
whose election is called in question by the
petition, that his election was valid, he
shall dismiss the petition as against such
person and may award costs at his
discretion and in case he finds the
application to be altogether frivolous he
may also order that the security deposit
shall in part or whole be forfeited to the
concerned Gram Panchayat.

(3) If the Sub-Divisional Officer
finds that the election of any person was
invalid he shall either-

(a) declare a casual vacancy to
have been created; or

(b) declare another candidate to
have been duly elected, whichever course
appears, in the particular circumstances of
the case, to be appropriate, and in either
case may award costs at his discretion:

Provided that no such declaration
shall be made unless a claim for it has been
made in the application.

(4) The security deposit or
portion thereof, as the case may be, not
forfeited under sub-rule (2) and not
required for payment of any costs awarded
to any opposite party shall be refunded by
the District Panchayat Officer to the
person depositing the same or in case of his
death, to his legal representative. "

9. Rule 4 of 1994 Rules provides for
hearing of the election petition arising out
Panchayat Election.

10. From bare reading of the
aforesaid provision of 1994 Rules, it is
crystal clear that the application of Civil
Procedure Code has been made to a
limited extent and so far as recording of
evidence is concerned the proviso (ii) and
(iv) of Rule 4 of 1994 Rules, are
complete code in itself.

11. The reliance placed by the learned
counsel for the petitioner upon Order 18
Rule 4 of CPC and Section 137 of CPC is
misconceived. The aforesaid provision
being general in nature shall not apply
where Special Law provides specific
procedure.

12. The learned counsel for the
petitioner has heavily placed reliance upon
the judgment Arunesh Vs. Prescribed
Authority/S.D.O. Gonda (supra), wherein
this Court has issued the following
directions;
466 INDIAN LAW REPORTS ALLAHABAD SERIES

"5. I may point out that Uttar
Pradesh Panchayat Raj (Disposal of
Election Disputes) Rules, 1994 have been
framed under section 12-C, 12- D read with
section 110 of the Uttar Pradesh Panchayat
Raj Act. Rule 4 of these Rules provides that
the procedure of Civil Procedure Code
shall be applied in the hearing of election
petitions subject to the rules made under
these Rules. Rule 4 makes it clear that the
procedure of CPC shall be applied.
Therefore, the opposite party No.1 is
directed
to
dispose
of
the
pending
applications for the amendment of the
written statement and for summoning the
documents and after disposal of these
applications opposite party No.1 is directed
to frame issues and after framing of tire
issues, he will record the statement of the
witnesses of the election petitioner and
opportunity of cross-examination shall be
given to the opposite parties. After that the
opposite parties shall be given opportunity
to adduce oral evidence. All the documents
of both the parties shall be taken on the
date of framing the issues. Either of the
party shall be at liberty to request the
Presiding Officer to summon the specific
document which are required to be proved
in the election petition and the Presiding
Officer may pass appropriate order for
summoning of the documents if those
documents are required to ascertain
whether a prima facie case is made out or
not. The question of summoning the ballot
papers or recounting be disposed of after
hearing both the parties if it is found that
prima facie case is made out to summon the
ballot papers or the recounting of the votes.
So far as the impugned order is concerned,
this order will not be implemented unless
the due procedure as directed above, is
followed by the opposite party No. 1 and if
this order is to be implemented, there will
be a specific order pointing out the
particular documents after hearing both the
parties"

13. From perusal of the aforesaid
directions, it is apparent that the learned
Single Judge has not considered the
specific provision of proviso (ii) and (iv) of
Rule 4 of 1994 Rules, while passing the
directions regarding the cross-examination
of witnesses. Therefore, in my considered
view, the aforesaid judgment is per
incuriam likewise judgment in Ram Adhar
Singh (supra) also did not deal with the
proviso (ii) and (iv) of Rule 4 of 1994
Rules, therefore, the same cannot be
applicable in the instant case.

14. In view of the aforesaid, the
instant writ petition is dismissed being
devoid of merits.

15. In view thereof, it is hereby
directed that the Sub-Divisional Magistrate,
Sadar, Mirzapur shall decide the instant
Election
Petition
at
the
earliest
expeditiously, preferably within a period of
two months from the date of production of
a certified copy of this order after following
due procedure of law.
----------
(2023) 8 ILRA 466
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.08.2023
BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Writ C No. 26718 of 2023

Rahul Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rajesh Yadav, Sri Mukul Yadav