D.K.Seth, J. - (1.) The above appeal has been filed under Rule 47 of the U. P. Zila Panchayat (Election of Adhyaksha and Upadhyaksha and Settlement of Election Disputes Rules), 1994 (hereinafter referred to as the 1994 Rules) against the judgment and order dated 27th October. 1999 passed by the learned District Judge, Pithoragarh in Election Petition No. 146 of 1998. Both the plaintiff Madhwanand Joshi and defendant Madan Singh were elected as Members of the Zila Panchayat (hereinafter referred to as Z.P.) of Pithoragarh. During the term of the Z.P., Pithoragarh by a notification dated 28th October, 1997, the State Government created a new district of Champawat carving out a part from the district of Pithoragarh, By reason of the notification dated 18th April, 1995 issued by the State Government, the elected members of the Z.P., Pithoragarh would continue to Members of Z.P., Champawat until a Z.P., Champawat is established in the new district so created and then they will become members of the newly created Z.P., Champawat. On 21st June. 1998, election of Upadhyaksha of the Z.P., Champawat took place, in which one Jeevan Lal Verma elected from a constituency since been included in the newly created Z.P., Champawat was prevented from voting since he was continuing as Upadhyaksha of Z.P., Pithoragarh. Despite being so prevented, he did not challenge the same nor opposed his exclusion from the list of voters for electing Upadhyaksha of Z.P., Champawat. On 13th October, 1998, the State Government issued a notification for initiating election for the post of Adhyaksha. Jeevan Lal Verma, defendant resigned from the post of Upadhyaksha of Z.P., Pithoragarh until 29th October, 1998. Allegedly, Jeevan Lal Verma had submitted his resignation delivered to the Adhyaksha. Pithoragarh Z.P. without delivering the said resignation to the Mukhya Adhikart, Z.P.. Pithoragarh, as was required under the law. On 30th October. 1998, the election of Adhyaksha of Z.P., Champawat took place. The plaintiff Madhwanand Joshi objected to the participation of Jeevan Lal in the election on the ground that he will still be holding the post of Upadhyaksha of Z.P., Pithoragarh. But the Nirvachan Adhikari being the District Magistrate permitted Jeevan Lal to vote after rejecting the objection raised by Madhwanand Joshi. On 9th November, 1998. Madhwanand Joshi filed Election Petition No. 146 of 1998. On 16th November, 1998, a certificate was issued by the Adhyaksha Z.P., Pithoragarh certifying that Jeevan Lal Verma had resigned from the post of Upadhyaksha of that Z.P. On 27th October, 1999, the learned District Judge allowed the Election Petition No. 146 of 1998 setting aside the election of Madan Singh declaring Madhwanand Joshi as duly elected Adhyaksha of Z.P., Champawat, which was due to take effect immediately under Rule 44 of the 1994, Rules. On 28th October, 1999, Madhwanand Joshi took oath of the office of Adhyaksha of Z.P., Champawat and assumed charge of the post.
(2.) The appeal has been preferred against his order dated 26th October, 1999 passed in Election Petition No. 146 of 1998 by the learned District Judge, Pithoragarh. Mr. M.S. Negi, learned counsel for the appellant has also made an application for interim order restraining Madhwanand from interfering with his working as Adhyaksha of the Z.P., Champawat. Certain orders were passed on the said application and having regard to the urgency of the matter, since notices were issued and the counsel for Madhwanand had appeared, the matter was hotly contested with regard to the interim order. In which claims and counter-claims were made by the respective parties. In order to obviate the situation, by consent of the parties, the matter was fixed for hearing on 22nd February, 2000. Both the learned counsel appearing for the respective parties had made their submissions and concluded the argument on merit of the case, which will be referred to hereafter, and the judgment was reserved.
(3.) Mr. Negi had contended that on the creation of a new Z.P., each of the members elected from the constituency falling within the Z.P. of Pithoragarh were to continue as members of Z.P., Pithoragarh until the establishment of Z.P., Champawat. According to him, the moment a new district is created, the members elected from the constituency falling within the new district becomes eligible as elected members to be included in the newly created Z.P. Continuation of holding a post of Upadhyaksha in the original Z.P. has no implication with the continuation of the person holding the post as member of the newly created Z.P. He referred to Sections 17, 18, 19, 20 and 21 of the U. P. Kshetra Panchayat and Zila Panchayat Adhiniyam. 1961, in order to substantiate his contention. Therefore, according to him. Jeevan Lal Verma, admittedly, having been elected from a constituency since been assigned to Champawat, was eligible to vote for the election of the Adhyaksha and Upadhyaksha of Champawat. If he has a right and it is wrongly denied and that has not been objected to, still then it does not mean that Jeevan Lal had lost his "membership to the Z.P., Champawat. He remains a member of the Panchayat by fiction of law. There cannot be any estoppel in respect of legal proposition and situation. He then contends that even if it is assumed that his continuation as Upadhyaksha of Pithoragarh Z.P. would debar him from participating in the election, then also Jeevan Lal having submitted his resignation on 29th October, 1998 he was free to participate in the election. He further contends that even if it is held that Jeevan Lal was not entitled to participate in the election, still then there cannot be any declaration of Madhwanand as duly elected Upadyaksha since the vote was by secret ballot. In law there cannot be any question of presumption or proof of a fact as to in whose favour, Jeevan Lal had cast his vote. Therefore, at the best the Court ought to have, assuming but not admitting, after setting aside the election, direct fresh election to be held. According to him the election being by secret ballot, the same cannot be made open or public even by judicial pronouncement. He then contends that there cannot be any basis of any legal presumption that Jeevan Lal had voted for the appellant Madan Singh. He then contends that in view of the provisions of U. P. Zila Panchayat (Settlement of Disputes Relating to Membership). Rules, 1994, the question as to whether Jeevan Lal is a member of Z.P., Champawat can be determined only in a dispute relating to membership Rules. The said question cannot be gone into within the scope and ambit of Election Disputes Rules. Therefore, according to him the decision is wholly without jurisdiction. In support of his contention, he had relied on two decisions, namely, in the case of Shri Shreewant Kumar Choudhary v. Shri Baidyanath Panjiar, AIR 1973 SC 717, and in the case of R. Chandran v. M.V. Marappan, AIR 1973 SC 2362. On these grounds the appellant wants that the judgment appealed against be set aside.;