P.P.Gupta - (1.) THE petitioner was elected as Pradhan of the Gaon Sabba Pansukha. Block Sambhal, District Moradabad in the year 1988. THE respondent no 3 who lost the election challenged the said election of the petitioner under section 12-C of the U.P. Panchayat Raj Act (hereinafter referred to as the Act) THE main ground taken in the election petition was that the counting of ballot papers was not fair During the proceedings of the case, the respondent no 3 moved an application paying for recounting. He did not press the other allegations made by him in the election petition.
(2.) THE sub-Divisional Officer, Sambhal, district Moradabad, respondent no. 1, by his order dated 11th May, 1990 allowed the said application and summoned the ballot papers A (true copy of the order dated 11th May, 1990 is Annexure-4 to the writ petition In pursuance of this order, recounting of the ballot papers was done. Before the process was completed, the respondent no. 1 summoned the counter foils of the ballot papers by his order dated 6th July, 1990 which is Annexure no. 5 to the writ petition. It is this order that has been challenged by the petitioner in this writ petition. According to the petitioner this order is wholly illegal, arbitrary and without jurisdiction. Simultaneously, the petitioner has also challenged the earlier order dated 11th May, 1990 passed by respondent no. 1 for recounting the ballot papers. Learned counsel for the petitioner and respondent no. 3 and the learned Standing counsel were heard. It was submitted on behalf of the respondents that the order dated 11th May, 1990 passed by respondent no. 1 for recounting had not been challenged by the petitioner. Without reserving any rights to challenge this order, petitioner participated in the recounting It was only when the order for summoning the counter foils of the ballot papers was passed by the respondent no 1 on 6-7--90, the petitioner rushed to this Court and challenged both the orders, namely, the order dated 11th May, 1990 and the order dated 6th July 1990 passed by the respondent no. 1. The argument of respondents, therefore, was that after having participated in the recounting, it does not lie with the petitioner to challenge the earlier order dated 11th May, 1990. Regarding the subsequent order dated 6th July, 1990, the contention of the respondents was that there is nothing wrong or illegal in this order. The order for summoning the counter foils has been passed in order to facilitate the recounting of ballot papers. Basically, this subsequent order has been passed in order to determine whether some of the ballot papers were not genuine and were in fact fake.
(3.) I have perused the order dated 11th May, 1990 which is Annexure- 4 to the writ petition. This order was passed after hearing the petitioner as well as the respondent no. 3. On the evidence produced, the respondent no. 1 was satisfied that it was a fit case for recounting Accordingly the recounting was ordered by him. The petitioner could have challenged this order by filing a revision by resorting to another remedy available under the law. But he did not do so. Instead, the petitioner participated in the recounting as is evident from the subsequent order passed by respondeat no. 1 on 6th July, 1990. The sealed bundle containing ballot papers was opened in the presence of the learned counsel for both the parties namely Devendra Pal and Sri Jahid Anwar At that time Sri Gajendra Singh, Agent of Sri Basarat Husain and Sri Munnu Kham, holding power of attorney on behalf of respondent no. 3 were also present. The recounting of ballot papers was done in their presence. It is, therefore, clear that the present petitioner also participated in the recounting off ballot papers. After having submitted to the order of recounting, passed by respondent no. 1 on 11th May, 1990 and having participated in the recounting, the petitioner cannot now challenge the order of recounting on the ground that subsequent order unfavourable to him has been passed by respondent no. 1 He having acquiesced in the order dated 11th May, 1990 and having participated in the recounting of ballot papers, cannot challenge the order dated llth May, 1990 now. The other order that has been challenged is of 6th July, 1990 passed by respondent no 1 by which he has summoned the counter foils of the ballot papers During the recounting of ballot papers, it was discovered that 188 ballot papers did not have signature of the Returning Officer on their back. It created bonafide doubt in the mind of the respondent no 1 regarding the genuineness of such ballot papers. It is for this reason that he considered it necessary to examine the counter-foils of such ballot papers probably to compare the portions of seals on the counter foils and the ballot papers. This order has obviously been passed to facilitate the recounting of ballot papers and to determine whether any fake or bogus ballot papers have been used in the election. This order, therefore, does not suffer either from any illegality or infirmity. In my opinion, the respondent no. 1 was perfectly justified in passing the order and summoning the counter-foils in order to examine and verify whether 188 ballot papers in the genuineness of which he had some doubts were really genuine ballot papers or not.;