JUDGMENT G.P. Mathur, J.
1. This appeal has been preferred under Section 74 of U. P. Municipal Corporations Adhiniyani, 1959 (hereinafter referred to as the Act) against the order dated 2.2.2002 of Special Judge, Gorakhpur, by which the election petition filed by the appellant was rejected.
2. The election for the office of Nagar Pramukh of Gorakhpur Nagar Nigam (Municipal Corporation) was held on 20.11.2000 in which respondent No. 1 was elected. The appellant filed an election petition under Section 61 of the Act challenging the election of respondent No. 1 on several grounds. The respondent No. 1 filed written statement raising various pleas and one of the plea raised was that the election petition has not been properly presented. The special Judge decided some issues as preliminary issues and issue No. 4 was whether the election petition had been properly presented. This issue was decided against the appellant and the election petition was rejected by the order dated 2.2.2002.
3. In para 30 of the written statement, a plea has been taken that the election petition should have been personally presented by the appellant and as the same had been presented by her counsel, it was liable to be rejected. The learned special Judge relying upon Clause 36 (2) of U. P. Municipalities (Conduct of Election of Presidents and Election Petitions) Order, 1964, held that as the election petition had not been presented by the appellant in person its presentation was not proper and the election petition was liable to be rejected. Sub-clause (2) of Clause 36 of this order lays down that the election petition shall be presented in person by the petitioner or if there are more than one petitioner, by anyone or more of them. It may be noted here that U. P. Municipalities (Conduct of Election of Presidents and the Election Petitions) Order. 1964, has been replaced by U. P. Municipalities (Conduct of Election of Presidents and the Election Petitions) Order. 1983. Sub-clause (2) of Clause 60 thereof contains a similar provision, namely, that an election petition shall be presented in person by the petitioner or if there are more than one petitioner, by anyone or more of them. Therefore, the reference made to Clause 36 of the 1964 order by the learned special Judge cannot have any substantial bearing.
4. The fundamental mistake committed by the learned special Judge is that he relied upon U. P. Municipalities [Conduct of Election of Presidents and Election Petitions) Order. 1964, which has been made under U. P. Municipalities Act and deals with the conduct of election of Presidents of Municipal Board, Gorakhpur is a Nagar Nigam (Municipal Corporation) and is not a Municipal Board. The respondent No. 1 has been elected as Nagar Pramukh of Nagar Nigam (Municipal Corporation) Gorakhpur, and it is her election which is subject-matter of challenge in the election petition filed by the appellant. The manner of election of a Nagar Pramukh of a Nagar Nigam and also the manner in which it can be challenged has been given in U. P, Municipal Corporations Adhiniyam, 1959. The provision of law relied upon by the learned special Judge has absolutely no application to the facts of the case.
5. The relevant provisions dealing with disputes relating to elections is contained in Sections 60 to 80 of the Act. Section 60 provides that no election under the Act shall be called in question except as provided by or under the Act. Section 61 of the Act which deals with questioning of election of Nagar Pramukh or Upa Nagar Pramukh reads as follows :
'61. Questioning of election of Nagar Pramukh or Upa Nagar Pramukh.--(1) The election of a person as Nagar Pramukh or Upa Nagar Pramukh may be questioned by any unsuccessful candidate or by any person whose nomination paper was rejected or by any member of the Corporation by presenting a petition to the District Judge exercising jurisdiction in the City on any one or more of the grounds mentioned in Section 71.
(2) The petition shall be presented within seven days of the declaration of the result of election."
This provision does not require that the election petition should be presented in person by the election petitioner.
6. Sub-section (2) of Section 67 of the Act lays down that the District Judge hearing the election petition shall follow such procedure as may be prescribed by rules made under Section 79. The State Government has made Uttar Pradesh Nagar Mahapalika Nirvachan Yachikaon Ki Niyamavali, 1959, in exercise of powers conferred by Section 79 of the Act. These Rules do not contain any provision that an election petition should be presented in person. Rule 8 lays down that except so far as provided by the Act or elsewhere in the Rules, the procedure provided in the Civil Procedure Code to regard to suits, shall so far as it is not inconsistent with the Act or any provisions of these Rules and so far as it can be made applicable, be followed in the hearing of election petitions. This rule shows that the procedure prescribed in Civil Procedure Code in regard to suits shall be followed unless it is inconsistent with the Act or the Rules. Order III. Rule 1, C.P.C. lays down that any appearance application or act. in or to any Court, required or authorised by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognised agent, or by a pleader appearing, applying or acting as the case may be on his behalf. This provision empowers a pleader to file an application or to act on behalf of the party for whom he is appearing except where it is expressly otherwise provided by law. As mentioned earlier, there is no provision either in the Act or in the Rules which may require a personal presentation of an election petition to challenge the election of a Nagar Pramukh. In these circumstances, the election petition filed by the appellant could be presented by her counsel and there is no defect in its presentation. The view taken by the learned special Judge that the election petition should have been personally presented is wholly erroneous in law.
7. The language used in Section 61 of the Act is entirely different from other statutory provisions where personal presentation of the election petition has been made mandatory. We have already referred to Clause 36 (2) of U. P. Municipalities (Conduct of Election of Presidents and Election Petitions) Order. 1964 and Clause 60 (2) of U. P. Municipalities (Conduct of Election of Presidents and Election Petitions), Order, 1983, which provide that an election petition shall be presented in person by the petitioner or if there are more than one petitioner, by any one or more of them. Notice may be taken of some other similar provisions. Sub-rule (1) of Rule 33 of U, P. Zila Panchayats Election of Adhyaksha and Upa-Adhyaksha Rules lays down that an election petition calling in question the election of an Adhyaksha or Upa-Adhyaksha may be presented to the Judge at any time within thirty days from the date of declaration of the result. Sub-rule (2) of Rule 33 reads as under :
"33 (2) It shall be presented in person by the petitioner or if there are more than one petitioner, by any one or more of them."
8. Sub-rule (1) of Rule 35 of Election of Pramukhs and Up-Pramukhs Rules. 1994, lays down that an election petition calling in question the election of a Pramukh or U]j-Pramukh, may be presented to the Judge at any time within thirty days from the dale of declaration of the result. Sub-rule (2) of Rule 35 reads as follows :
"35 (2) It shall be presented in person by the petitioner or if there arc more than one petitioner, by any one or more of them."
9. The above quoted provisions and also U. P. Municipalities (Conduct of Election of Presidents and Election Petitions) Order, 1983, make a clear and specific provision that an election petition' shall be presented in person. This shows that wherever the Legislature intended that the election petition should be presented in person, a specific provision to that effect was made. There is no similar provision in U. P. Municipal Corporations Adhiniyam. which may make it obligatory for presentation of an election petition in person. Therefore, it is not possible to hold that the election petition, which has been filed by the appellant should have been presented in person and the view to the contrary taken by the learned special Judge is clearly erroneous in law and has to be set aside.
10. The learned special Judge has also observed in the order under challenge that the vakalatnama filed by the counsel, who presented the election petition before the District Judge did not categorically authorise him to file the election petition. A copy of the vakalatnama has been filed along with the affidavit. The language used in the vakalatnama is couched in very general terms and it empowers the counsel to file all kinds of paper and documents and to perform all necessary acts in connection with the prosecution of the case. In our opinion, the authority given by the vakalatnama comprised within its fold the authority to file the election petition also. The view to the contrary taken by the learned special Judge that the vakalatnama filed by the counsel did not empower him to file the election petition is not correct.
11. In the result, the appeal is allowed with costs and that part of the impugned order dated 2.2.2002, by which the presentation of the petition was held to be improper and the election petition was rejected is set-aside. The Judge concerned is directed to proceed with the trial of the election petition and to make all possible endeavour to decide the same at the earliest.