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Judgment
The matter comes up on an application at the instance of the
respondent election petitioner (hereinafter `the EP'') for vacation of
the interim order dated 11-1-2017.
With the consent of counsel for the parties the matter is taken
up for final hearing.
Under challenge is the judgment dated 16-12-2016 passed by Senior Civil Judge, Deeg, District Bharatpur allowing the election
petition filed at the instance of the EP and setting aside the election of
the petitioner-returned candidate (hereinafter ''the RC'') on the post
of Sarpanch, Gram Panchayat Kakda, Panchayat Samiti Deeg, District
Bharatpur.
Counsel for the RC has confined his arguments to the election
petition not being maintainable having been presented by the EP''s
counsel.
Heard. Considered.
The issue of maintainability of an election petition being
presented by a counsel authorised by the election petitioner has been
the subject matter of consideration in DB Civil Reference No.1/2017
decided on 20-4-2017. Therein the Division Bench answered the
reference as under:-
"An election petition presented by a Lawyer on the strength of a Vakalatnama would be deemed to have been duly presented if the language of the Vakalatnama expressly records that the Lawyer is authorised to present the election petition. It would then be a question of fact to be determined by the Tribunal keeping in view the language of the Vakalatnama. If the language of the Vaklatnama expressly records that the Lawyer is authorised to present the election petition, it would be a case of valid presentation of the election petition."
It is thus evident that an election petition can be filed by a counsel of the election petitioner on the strength of vakaltnama
authorising him to present it. As to whether the vakalatnama signed
by the election petitioner authorised the counsel to present the
election petition is a question of fact. A perusal of the judgment date
16-12-2016 indicates that even an issue with regard to the counsel
being not authorised by the EP to present the election petition on her
behalf was struck before the trial court. Even otherwise counsel for
the RC has not been able to show that any evidence to establish that
the counsel for the EP was not authorised to present the election
petition obtained before the trial court. It is in place to note that the
burden of proving that the election petition was not laid as per Rule
81 of the Rajasthan Panchayat Raj (Election) Rules, 1994 was on the
RC and to be discharged by her. That burden has not been at all
discharged by the RC.
In the circumstances, I find no force in the petition. It is
accordingly dismissed.
In view of aforesaid, the application for vacation of the interim
order stands disposed of as infructuous.