K.S.Varma, J. - (1.) The petitioner Kali Prasad and opposite party No. 2 Sukh Ram contested the election for the office of Pradhan of Gaon Sabha, Khampur of Pergana and Tahsil Sadar, District Pratapgarh for the term 1972-1977. The polling took place on 26th May, 1972 and counting of votes took place on 4-6-1972. After counting of votes the Returning Officer declared the petitioner as having been elected Pradhan of the Gaon Sabha, Khampur. According to counting, he had received 132 valid votes in his favour and Sukh Ram received 130 valid votes. Sukh Ram filed an election petition and challenged the election of the petitioner under S. 12-C of the U. P. Panchayat Raj Act on a number of grounds and prayed that the election be set aside, A copy of the election petition is Annexure I to the writ petition. On 20-3-1974 sukh Ram moved an application that the election petition may be decided on recounting only and that he would not lead any evidence in the case. Kali Prasad did not oppose the application dated 20-3-1974 and agreed to the case being decided on counting of votes. Ultimately, the Election Tribunal fixed 14-1- 1976 for recounting. The recounting was done on that date and as a result of the recounting Sukh Ram received 122 valid votes while Kali Prasad secured 116 valid votes. Opposite party No. 1 by order dated 29-8- 1977 declared Sukh Ram successful. The order passed by the Election Tribunal, opposite party No. 1 declaring Sukh Ram successful is filed as Annexure 5 to the writ petition. Kali Prasad has challenged the order Annexure 5 by means of this writ petition.
(2.) The writ petition is opposed by Sukh Ram, opposite party No. 2 who has filed a counter-affidavit in which he has stated that the petitioner did not oppose the application for recounting and if on recounting the opposite party No. 2 has been declared successful, there is no illegality in the order passed by the opposite party No. 1. By and large the case of opposite party No. 2 is that he had applied for recounting of votes and the petitioner did not object to the recounting and the election records were made part and parcel of the record of the Election Petition. The case of opposite party No. 2 is that since the petitioner had agreed to the recounting he cannot be permitted to challenge the legality of recounting.
(3.) From a perusal of the order passed by opposite party No. 1, dated 29-8-1977 it appears that before the Tribunal an application was moved on behalf of opposite party No. 2 that he will not produce any evidence and the case be decided on recounting. On this application the petitioner raised no objection. Tribunal, accordingly, took the view that since recounting was not objected to by the petitioner, the other issues earlier framed were unnecessary and the case had to be decided on recounting.;