WPMS/784/2021
2022 Latest Caselaw 3998 UK

                Office Notes,
             reports, orders or
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      Date                                   COURT'S OR JUDGES'S ORDERS
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                                  WPMS No. 784 of 2021
                                  with
                                  WPMS No. 785 of 2021
                                  Hon'ble Manoj Kumar Tiwari, J.

There is no representation for the petitioner.

Mr. R.C. Arya and Mr. Yogesh Chandra Tiwari, Standing Counsel for the State of Uttarakhand.

Mr. Vikas Bahuguna, Advocate for respondent no.3 in WPMS No. 785 of 2021.

Since common questions of law and facts are involved in these writ petitions, therefore they were heard together and are being decided by a common judgment. However for the sake of brevity, facts of Writ Petition (M/S) No.784 of 2021 are being considered and discussed.

This writ petition is directed against the judgment & order dated 16.03.2021 passed by District Judge, Udham Singh Nagar in Election Petition No. 02 of 2020. By the said order, Election Petition filed by the petitioner under Section 131-H (10) of Uttarakhand Panchayati Raj Act, 2016 was dismissed on the ground that Election Petition was not filed in accordance with Section 131-H (10) of the said Act, as interpreted by this Court in the judgment dated 19.08.2020 rendered in WPMS No. 3350 of 2019. In the said judgment, this Court had held that since the Statute is silent regarding mode & manner of making reference of election dispute to the District Judge, therefore, anyone desirous of challenging election of Members and Office Bearers of Kshettra Panchayat or Zila Panchayats can raise an election dispute by presenting the Written Petition before the District Magistrate and the District Magistrate shall refer such dispute to the District Judge for adjudication and the District Judge shall thereafter enter into such reference. It would be incumbent upon the District Magistrate to refer the election dispute to the District Judge as early as possible; but, not later than 48 hours from the date of such presentation. It is further provided that limitation would stop running, the moment, the Written Petition is presented before the District Judge. Paragraph no. 27 of the said judgment is reproduced below:

"27. Since in the entire Act, there is no provision providing for the mode & manner of making reference of election dispute to the District Judge, therefore, with a view to remove any doubt, which may be raised later, in the interest of justice, this Court by exercising its extraordinary powers under Article 226 of Constitution of India, provides that petitioners, who are aggrieved by the result of election of Members and Office Bearers of Kshettra Panchayat or Zila Panchayats can raise an election dispute by presenting the Written Petition before the District Magistrate and the District Magistrate shall refer such dispute to the District Judge for adjudication and the District Judge shall thereafter enter into such reference. It would be incumbent upon the District Magistrate to refer the election dispute to the District Judge as early as possible; but, not later than 48 hours from the date of such presentation. It is further provided that limitation would stop running, the moment, the Written Petition is presented before the District Judge."

Since in the present case, petitioner had directly filed Election Petition before the District Judge and the same was not referred through District Magistrate, therefore, on this sole ground, the Election Petition was dismissed.

Learned counsel for respondent no. 3 in WPMS No. 785 of 2021 submits that a Co-ordinate Bench of this Court in WPMS No. 1076 of 2021 vide judgment dated 07.10.2021 has set-aside the order passed by District Judge, by which District Judge had declared the Election Petition to be maintainable without reference by the District Magistrate. Thus, he submits that the ratio of the said judgment would be that, without reference by the District Magistrate, Election Petition cannot be entertained. In other words, reference by District Magistrate is mandatory and without reference Election Petition cannot be entertained. Thus, he submits that the order passed by District Judge, which is impugned in these writ petitions, is perfect and calls for no interference.

This Court finds force in the contention raised by learned counsel for respondent no. 3. Since Co-ordinate Bench of this Court has already taken a view, therefore, this Court concurs with the view taken by Co-ordinate Bench of this Court in the judgment dated 07.10.2021 rendered in WPMS No. 1076 of 2021.

Thus, there is no scope for interference with the impugned orders.

Accordingly, the writ petitions fail and are dismissed.

(Manoj Kumar Tiwari, J.) 13.12.2022 Arpan