- (1.) HEARD Sri A. Z. Siddiqui, learned counsel for the petitioner and Sri Vikas Vikram Singh, learned counsel for opposite party no. 2.
(2.) BY means of present writ petition, the petitioner has challenged the order dated 25.9.2012, passed by Sub Divisional Officer, Sadar/ Prescribed Authority, Hardoi in Election Petition No. 9 of 2011 (year 2010-11), filed under section 12 -C of U.P. Panchayat Raj Act by which directions have been issued for re-counting of votes to be held on 17.10.2012 at 11 A.M. Submission of learned counsel for petitioner is that the election of the Office of Pradhan of the Gram Panchayat Kautheliya, Pargana- Bangar Vikas Khand Sursa, tehsil and district Hardoi was held on 28/29.10.2010 and the petitioner secured total 391 votes whereas opposite party no. 2 secured 389 votes. Accordingly, petitioner won the election by margin of two votes and was elected Pradhan of Village Panchayat Gram Kauthheliya. Being aggrieved, the opposite party no. 2 filed Election Petition under section 12-C of the U.P. Panchayat Raj Act against the petitioner with the prayer of re-counting of votes. Submission of learned counsel for petitioner is that the sole ground taken by the opposite party no. 2 in the election petition was that 403 votes were cast at booth no. 1 in respect of Ward Nos. 1 to 7 and at second booth total 428 votes were cast for ward no. 8 to 11, in total 831 votes were cast. Opposite Party No. 2 further averred in the petition that on the day of counting i.e. on 28.10.2010, in first round opposite party no. 2 got 187 votes and the petitioner got 210 votes. In second round, opposite party no. 2 got 220 votes and the petitioner got 181 votes. On 29.10.2010, opposite party no. 2 was informed that she won the election by 16 votes but later on certain irregularities were committed by the Returning Officer and other officials and thereby the petitioner was declared elected by 02 votes. The petitioner on receipt of summons , contested the election petition and filed Written Statement on 10.1.2011 denying the allegations made in the Election Petition and emphasized that counting was done in accordance with the provisions of U.P. Panchayat Raj Act (Election of the Members, Pradhan and Up- Pradhan) Rules, 1994 and no irregularity was committed in the counting.
(3.) IT is also submitted that the Election Petition has not been filed properly as the compliance of Order 6 Rules 4 & 11 of the Code of Civil Procedure was not done and, therefore, Election Petition is liable to be dismissed being not maintainable. The opposite party no. 2 filed her own affidavit as well as four other affidavits as witnesses. It is also submitted by learned counsel for the petitioner that the opposite party no. 2 has not appeared in witness box and, as such, she could not be cross-examined and the Prescribed Authority without determining the point in issue, directed for re- counting of votes. Sri Vikas Vikram Singh, learned counsel for opposite party no. 2, while opposing the writ petition, submitted that after filing of Election Petition, Opposite Party no. 2 met with the accident on 9.10.2012 and she is suffering with neurological problem, because of which she could not appear as a witness but rest of witnesses gave their statements in support of opposite party no. 2 and the Prescribed Authority after examining the record framed four issues and gave finding for re-counting of votes on 17.10.2012. As such, writ petition is liable to be dismissed. I have considered the submissions of learned counsel for parties and gone through the record.;