GUTHRATI Vs. IIND ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) The order dated 29.8.1996 passed by the Additional District Judge, II Court. Siddharth Nagar in Election Petition No. 4 of 1996 has since been challenged in this writ petition.

(2.) Mr. Jokhan Prasad assisted by Mr. Tripathi B. G. Bhai, learned counsel for the petitioner contended that the revisional court could not assume jurisdiction beyond the scope and ambit of sub-section (6) of Section 12C of the U. P. Panchayat Raj Act, 1947. The revisional authority can interfere with the decision of the prescribed authority only on the grounds mentioned in clauses (a), (b) and (c) of sub section (6) of Section 12C of the said Act. In the present case, none of the clauses (a), (b) and (cj is satisfied. According to him. there was no Illegality or irregularity. He further contends that the order of recounting was challenged in revision, which was rejected, and thereafter it travelled to this Court which had again rejected the same. Therefore, it is no more open to take the ground with regard to the validity of the order for directing the recounting. He then contends there were sufficient grounds pleaded in the application on the basis whereof recounting could be ordered. He then contends that the recounting was made in the presence of the parties as well as their counsel. After having participated in the recounting, it is not open to the parties to challenge the re-counting. In the recounting the petitioner was said to have been elected and, therefore, the prescribed authority had rightly ordered declaring the petitioner having elected. On these grounds, he prays that the order of the revisional authority should be set aside.

(3.) Mr. M. K. Gupta, learned counsel for respondent, however, had contended that in the order passed by this Court challenging the order for recounting the question was kept open to be challenged in revision. Therefore, unless sufficient materials have disclosed, no order for recounting could be made. In the present case, there is no ingredient pleaded in the election petition so as to enable the Court to come to a finding that there were sufficient material for issuing a direction for recounting. He then contends that there was no material evidence to support the pleadings. The Court had riled on the hearsay evidence of the husband of the petitioner in order to direct recounting. Therefore, the order for recounting can very well be assailed. In support of his contention, he had cited two decisions, to which reference would be made at appropriate stage. He then contends that the Court received the records on 15.5.96. On 17.5.96 an application was made that the seal of the Panchayat Raj Adhikari has to be compared with the seal on the packets of the ballot papers which were brought. But the said seal has not been sent along with the record. Therefore, the seal should be called for and be compared with before opening the seal. On 20.5.1996 the said application was rejected and the seal was broken and counting was done and on the same very date the order was passed. Accordingly no opportunity was given to his client to oppose such an Irregular step in the matter of recounting which is in violation of Rule 47 (f) of the Uttar Pradesh Panchayat Raj (Election of Members. Pradhan and Up-Pradhan) Rules. 1994. He then contends that originally 30 ballot papers were declared invalid at the time of initial counting but while recounting 68 votes have been declared invalid without recording any reason as is required in Rule 49 (f) of the said rules. He has also pointed out that though the ballot papers were kept in bundles of 50 yet. It was found that ballot papers which were counted. were of different bundles consisting of different numbers of ballot papers. Therefore, according to him. these are illegalities and material irregularities in exercise of the jurisdiction by the prescribed authority on which it was Open to the revisional authority to interfere. Thus, he supports the finding of the revisional authority. He therefore prays that the writ petition should be dismissed.