JAYDRATH SINGH ALIAS JAYDOO SINGH Vs. JIVENDRA KUMAR

JUDGEMENT

(1.) These are three connected appeals arising out of the same judgment and order dated 26.9.1996 passed by IVth Additional District Judge, Shahjahanpur in Jaydrath Singh v. Jivendra Kumar and others, Election Petition No. 1 of 1995. The learned court below while allowing the election petition declared opposite party No. 1 before him, namely, Jivendra Kumar to have become disqualified to be the Adhyaksha.

(2.) Brief facts of the case are that Jaydrath Singh and Vijai Pratap Singh, who are appellants in First Appeal No. 706 of 1996 filed, an election petition under Section 27 (2) of Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 (thereinafter referred to as "the Act") read with Rule 33 of Uttar Pradesh Zila Panchayats (Election of Adhyaksha and Up-Adhyaksha and Settlement of Election Disputes) Rules. 1994 (hereinafter described as the "Rules") against the election of Jivendra Kumar (appellant in First Appeal No. 428 of 1996) declaring him elected as Adhyaksha. Zila Panchayat, Shahjahanpur by the Returning Officer. They claimed themselves to be the electors and member of Zila Panchayat Shahjahanpur. The main averments made in the election petition were that in accordance with the notification issued by U. P. Government followed by a notification issued by the District Returning Officer/District Magistrate, the date for nomination was fixed 16.5.1995 and for polling and counting of votes 22.5.1995. The candidates who contested the election were Jivendra Kumar. Manvendra and Shrimati Gayetri Verma. The election was held as per schedule and counting of votes started at about 2.00 p.m. on the same date. There were 31 electors/voters in all and all the 31 voters polled their votes. During the first counting, the candidates got the following number of first preference votes :

(3.) It may be mentioned here that Manvendra had filed a Writ Petition No. 16012 of 1995 in this Court in which a declaration in favour of Jivendra Kumar was sought to be quashed which was dismissed on 16.2.1996 on the ground of maintainability in view of the availability of remedy, as provided, by filing election petition was open to the petitioner but he did not prefer to file an election petition. Jivendra Kumar also filed Writ Petition No. 28658 of 1996 in this Court by which the impugned order, which was under challenge, was passed by the IVth Additional District Judge. Shahjahanpur in the aforesaid election petition refusing to decide the question whether the election petition was maintainable as a preliminary issue (Issue No. 2). On this a decision was made on 6.9.1996 directing the learned Additional District Judge to decide the said question as a preliminary issue and if he holds that the election petition is not maintainable, then he will straightaway dismiss the election petition but if he holds that the election petition was maintainable, the writ petitioner will not be permitted to challenge the said order straightaway by way of appeal, revision or writ petition but the entire election petition will be decided within 15 days thereafter in accordance with law and if the petitioner is aggrieved by that final order in the election petition, it will be open to him to challenge the same while challenging the flnal order. The writ petition was disposed of finally.