IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 2151 of 2009 Surendra Kumar aged about 24 years, S/O Sri Pani Ram, R/O Village Gagar, Ward No. 3, Tehsil and Block Pati, District Champawat.. … Petitioner. Versus 1. Prem Ram S/O Sri Nain Ram, R/O Village Gagar, Ward No. 5, Tehsil and Block Pati, District Champawat. 2. Returning Officer Gram Panchayat, 36 Gagar, Block Pati, District Champawat. 3. District Panchayat Raj Officer, District Champawat. 4. Prescribed Authority/Deputy District Magistrate, Pati, District Champawat. 5. District Magistrate/District Election Officer (Panchayat and Local Bodies) Champawat. … Respondents. Sri M.C.Pande, Advocate, learned counsel for the petitioner. Sri Sudhir Kumar, Brief Holder, for the respondent nos. 2 to 5. Date December 21, 2009. Hon’ble B.S.Verma, J. Heard Sri M.C.Pande, Advocate, learned counsel for the petitioner and perused the record. By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the order dated 14- 12-2009 passed by the District Judge Champawat in Civil Revision No. 16 of 2009 Surendra Kumar Vs. Prem Ram and others (Annexure-8 to the petition) as well as the order dated 21-11-2009 passed by the respondent no. 4 (Annexure-5 to the petition). A perusal of the record shows that by the order dated 21.11.2009, the Prescribed Authority/Sub Divisional Officer, Tahsil Pati has allowed the application of the respondent no.1 for recounting of votes cast in the election of Pradhan. Aggrieved by the said order, the petitioner preferred a Civil Revision (No. 16 of 2009) before the District Judge, Champawat, which was dismissed vide order-dated 14-12-2009. 2 It was informed by the learned counsel for the petitioner that in compliance of the order passed by the Prescribed Authority, recounting of votes was done on 15-12-2009. Learned counsel for the petitioner has contended that the election petition was not maintainable as such and as per Proviso appended to Rule 3(1) of the Uttar Pradesh Panchayat Raj (Settlement of Election Disputes) Rules, 1994, it is a mandatory provision that no election petition 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. At the time of filing of election petition, amount of Rs. 50/- as security was not deposited by the election petitioner and one week’s time was granted by the Prescribed Authority to deposit the said amount, while admitting the election petition. According to the petitioner, the provision of aforesaid sub-rule (1) of Rule 3 is mandatory in nature and no petition can be entertained without depositing the requisite amount. Furthermore, an application was also moved to the effect that on the relevant point of time, when the election petition was filed, the Prescribed Authority was not having the powers of the Sub Divisional Officer. Application was also moved that a preliminary issue be framed and it has to be decided first before proceeding further. The application is still pending. It is pertinent to mention here that both the orders, which are impugned, pertain to the recounting of votes. Since the recounting of votes was made on 15-12-2009, no order of stay of recounting could be passed now in the writ petition. However, so far as the prayer that the order for recounting was not in accordance with law is concerned, the same cannot be examined at this stage and it would be a futile exercise. 3 However, the Prescribed Authority-respondent no. 4 is directed to decide the application moved by the petitioner (copy Annexure-4 to the writ petition) before deciding the election petition, which is still pending and liberty is also given to the petitioner to move an application under Order 7, Rule 11 C.P.C. that the election petition was not maintainable. If such application is moved, the same shall also be decided by the Prescribed Authority before the decision of the election petition. With the above direction, the writ petition is disposed of finally without issuing notices to the respondent no. 1. ( B.S.Verma, J.) RCP 4