ANAND Vs. UP ZILA ADHIKARI

JUDGEMENT

(1.) Election for the post of Pradhan of village Chandauri Khaas, Vikas Khand Rohta, Tehsil and District Meerut was held on 17.8.2005. Besides other candidates, the writ petitioner and the respondent No. 2 had also contested the election and since both of them had secured equal number of votes, the declaration of election result was made by draw (toss), in which the petitioner was declared elected. The Respondent No. 2 (Mahak Singh) thereafter filed Election Petition No. 8 of 2005 before the Sub Divisional Officer (S.D.O.), Respondent No. 1 with the prayer for directing recounting of ballots and declare him elected. The writ petitioner (who was arrayed as opposite party in the Election Petition) filed his reply denying the allegations. An application was thereafter filed by the Respondent No. 2-election petitioner on 19.12.2005 enumerating therein various shortcomings in the counting of votes, and thus prayed that the matter be resolved by directing recounting. In response, the petitioner filed his objections on 22.12.2005 stating therein that the counting of votes was in accordance with law and that no decision could be taken without the parties being permitted to adduce evidence, and prayed that the said application be rejected. Thereafter on 20.4.2006 the S.D.O. passed an order directing recounting of votes. Challenging the said order, the petitioner filed an earlier writ petition No. 22892 of 2006. This Court, vide its judgment and order dated 27.4.2006, allowed the said writ petition and after holding that the petitioner was not heard by the S.D.O. on merits before the passing of the order, thereby affecting his valuable rights, the said order dated 20.4.2006 was set aside and the matter was remanded back to the S.D.O. for fresh decision in accordance with law, alter giving an opportunity of hearing to the concerned parties. After remand, parties appeared before the S.D.O. on 8.5.2006 and the arguments of the counsel for the election-petitioner as well as writ-petitioner (Anand) were heard on 11.5.2006 and by order dated 22.6.2006 the S.D.O. has again passed an order for recounting of votes. Aggrieved by the said order the petitioner has filed this writ petition in which an interim order had been passed on 26.6.2006 and the declaration of the result of recounting had been stayed.

(2.) I have heard Sri Anjani Kumar Misra, learned Counsel for the petitioner, as well as Sri Vijendra Singh, learned Chief Standing Counsel on behalf of Respondent No. 1 and Sri K.P. Tiwari, learned Counsel appearing for the contesting Respondent No. 2. Counter affidavits on behalf of the said respondents have been filed, to which rejoinder affidavits have also been filed. With the consent of the learned Counsel for the said parties, this writ petition is being disposed of at this stage. In view of the fact that other parties i.e. Respondents No. 3 to 9 had not filed their reply before the S.D.O., notices to them have not been issued. However in case the said respondents are so aggrieved, they may file an application for recall/modification/variation of this order.

(3.) The submission of Sri Misra, learned Counsel for the petitioner, is that the impugned order has been passed without the parties being given any opportunity of adducing evidence and without the election-petitioner (Respondent No. 2 herein) having filed any documentary evidence or adduced any oral evidence before the S.D.O. It has further been submitted that no issues were even framed by the S.D.O. before the passing of the impugned order, which has been done merely on the basis of the pleadings which was not permissible under law. Learned Counsel has vehemently emphasized that in the impugned order, except for reproducing the pleadings of the parties, the Respondent No. 1 has not given any finding of its own and merely stated that on the basis of the available evidence, it would be necessary to direct for recounting of votes. It has been contended that since the S.D.O. has not discussed as to what evidence was placed before him for coming to that conclusion, the said order would be bad in law, and thus liable to be quashed. In support of his contention, learned Counsel for the petitioner has placed reliance on the decisions of this Court rendered in the cases of Amrish v. Up Ziladhikari Meerut 2006 (101) Revenue Decision 23 and Mohammad Husain v. S.D.O. Shahabad 1983 All.L.J. 1193.