BASARAT Vs. SUB DIVISIONAL OFFICER SAMBHAL

JUDGEMENT

(1.) THE petitioner was elected as Pradhan of the Gaon Sabba Pansukha. Block Sambhal, District Moradabad in the year 1988. THE respondent no 3 who lost the election challenged the said election of the petitioner under section 12-C of the U.P. Panchayat Raj Act (hereinafter referred to as the Act) THE main ground taken in the election petition was that the counting of ballot papers was not fair During the proceedings of the case, the respondent no 3 moved an application paying for recounting. He did not press the other allegations made by him in the election petition.

(2.) THE sub-Divisional Officer, Sambhal, district Moradabad, respondent no. 1, by his order dated 11th May, 1990 allowed the said application and summoned the ballot papers A (true copy of the order dated 11th May, 1990 is Annexure-4 to the writ petition In pursuance of this order, recounting of the ballot papers was done. Before the process was completed, the respondent no. 1 summoned the counter foils of the ballot papers by his order dated 6th July, 1990 which is Annexure no. 5 to the writ petition. It is this order that has been challenged by the petitioner in this writ petition. According to the petitioner this order is wholly illegal, arbitrary and without jurisdiction. Simultaneously, the petitioner has also challenged the earlier order dated 11th May, 1990 passed by respondent no. 1 for recounting the ballot papers.

(3.) I have perused the order dated 11th May, 1990 which is Annexure- 4 to the writ petition. This order was passed after hearing the petitioner as well as the respondent no. 3. On the evidence produced, the respondent no. 1 was satisfied that it was a fit case for recounting Accordingly the recounting was ordered by him. The petitioner could have challenged this order by filing a revision by resorting to another remedy available under the law. But he did not do so. Instead, the petitioner participated in the recounting as is evident from the subsequent order passed by respondeat no. 1 on 6th July, 1990. The sealed bundle containing ballot papers was opened in the presence of the learned counsel for both the parties namely Devendra Pal and Sri Jahid Anwar At that time Sri Gajendra Singh, Agent of Sri Basarat Husain and Sri Munnu Kham, holding power of attorney on behalf of respondent no. 3 were also present. The recounting of ballot papers was done in their presence. It is, therefore, clear that the present petitioner also participated in the recounting off ballot papers. After having submitted to the order of recounting, passed by respondent no. 1 on 11th May, 1990 and having participated in the recounting, the petitioner cannot now challenge the order of recounting on the ground that subsequent order unfavourable to him has been passed by respondent no. 1 He having acquiesced in the order dated 11th May, 1990 and having participated in the recounting of ballot papers, cannot challenge the order dated llth May, 1990 now.