- (1.) S. N. Srivastava, J. By means of the present petition the petitioner has canvassed the validity of the impugned order dated 29-1-2004 passed by respondent No. 1 i. e. Addl. District Judge, Varanasi and sought its quashment.
(2.) THE facts essential for adjudication of controversy involved in this petition are that the petitioner who was pitched against respondents 3 to 5 in the election of Gram Pradhan for Gram Panchayat Chitrasenpur Block Sevapuri Tahsil and District Varanasi, was declared successful on 26-6-2000 having secured 844 votes while respondent No. 3 was a close follower having polled 826 votes. In the said election total votes polled were 1829 and out of which 1715 votes were held valid and 114 votes were declared invalid. In the quadrangle fight, other contestants i. e. Jagarnath respondent No. 4 secured 39 votes while Satish respondent No. 5 received 6 votes. Opposite Party No. 3 assailed the election by means of election petition on 11-7-2000 made under Section 12-C of the U. P. Panchayat Raj Act before the Prescribed Authority/ Sub-Divisional Officer, Varanasi on various grounds delineated in the election petition seeking the relief of recounting. THE Prescribed Authority/election Tribunal recorded the evidence and in ultimate analysis, dismissed the election petition by means of order dated 17-11-2003. Aggrieved by the order of Election Tribunal, a revision was preferred by respondent No. 3 which culminated in being allowed attended with the direction for recounting of votes after summoning the entire original record. It is in the above backdrop that the petitioner has assailed the impugned order passed by the Addl. District Judge, Varanasi. Sri R. N. Singh, learned Senior Advocate, assisted by Sri V. K. Singh, focused on three points in the course of arguments, which are abstracted below: (1) Order passed by Addl. District Judge while exercising power of revisional authority was without jurisdiction inasmuch as the said authority had no jurisdiction to set aside the finding recorded by the Prescribed Authority. (2) The revisional authority has not cited in his order any illegality or perversity in the order of the Prescribed Authority while reversing its order and. (3) There is neither any specific pleading nor any valid material available on record for recounting and fishing and roving enquiry into the process of election is not permissible in the election petition unless specific pleading or proof is there making out a case for recounting. The learned Counsel for the petitioner also placed credence on following case laws in vindication of his contentions: (i) Ram Adhar v. State, 1985 UPLBEC p. 317 (Full Bench ). (ii) Radha Kishan v. Election Tribunal cum-Sub-Judge Hissar and Anr. , AIR 2000 P & H 1 Full Bench. (iii) Mahendra Pal v. Shri Ram Das Malanger & Ors. , 2002 JT Vol II p. 396. (iv) Mahendra Pal v. Ram Das Malanger, 2002 (1) LBESR 732 (SC) : 2002 Vol. III SCC p. 457. (v) 2003 AWC Vol I p. 67. (vi) 2003 ACJ Vol 1 p. 220. Per contra, Sri V. K. Singh appearing for the caveator Opp. Party No. 3 forcefully and vigorously argued that there was specific averments in the election petition that out of 114 votes jettisoned out of reckoning, 80 ballot papers were such in which voters had affixed mark of seal against the symbol i. e. 'car' which was the symbol allotted to the respondent No. 3 and which according to the learned Counsel could not have been reckoned out of consideration and declared invalid. The learned Counsel also submitted that in this connection, the respondent No. 3 had made specific averments contained in the election petition which received reinforcement from other materials on record including statement of the respondent No. 3 and this furnished foundation for prayer of recounting of votes and the Prescribed Authority in utter disregard of all these materials on record, dismissed the election without any valid justification and on untenable grounds. He also submitted that in exercise of power under Section 12 (C) (6) the revisional authority could well exercise its power and look into all aspects inasmuch as the Prescribed Authority acted illegally and with material irregularity in exercise of jurisdiction vested in him. The learned Counsel also drew attention to guidelines issued by State Election Commission followed by reliance on Rule 49 of the U. P. Panchayat Raj Rules, 1994. In clause 23 (ga) of the guidelines, it is stipulated that if a person has affixed more than one mark of seal against a symbol, this would not render the vote invalid vis-a-vis the candidate in favour of whom the vote has been polled and further canvassed that non-reckoning of 80 votes in favour of the respondent No. 1 has materially affected his prospects and this gave illegal and unwarranted edge to the petitioner who has been illegally declared elected. In vindication of his stand, reliance was placed on Smt. Bhoori v. Addl. Sub-Divisional Magistrate, Amroha, 2003 (1) LBESR 650 (All) : 2003 (94) RD 454; Smt. Maya v. Up Ziladhikari Chhata, 2003 (94) RD 125 and Vadivelu v. Sundaram and others, AIR 2000 SC 3230, the rule of which shall be decocted in the latter part of the judgment. The above contentions give birth to the following three questions which beg consideration and determination: (1) Whether in exercise of power under Section 12-C (6) the District Judge could pass orders directing recounting on the grounds enumerated in his judgment? (2) Whether there was any pleading and foundation for issuing direction for recounting or whether it would amount to fishing out or roving enquiry as urged by the learned Counsel for the petitioner? (3) Whether the finding recorded by Addl. District Judge for recounting of the votes are vitiated on any ground and is liable to be quashed?
(3.) IN dealing with the first question, I would first like to have acquaintance with the scope of revisional power under Section 12-C (6) of the U. P. Panchayat Raj Act. Section 12-C (6) of the U. P. Panchayat Raj Act is excerpted below for ready reference: "12-C (6) Any party aggrieved by an order of the prescribed authority upon an application under sub- section (1) may, within thirty days from the date of the order, apply to the District Judge for revision of such order on any one of more of the following grounds, namely - (a) that the prescribed authority has exercised a jurisdiction not invested in it by law; (b) that the prescribed authority has failed to exercise a jurisdiction so vested; (c) that the prescribed authority has acted in the exercise of its jurisdiction illegally or with material irregularity. xxxxxxxxxxxx (8) The revising authority mentioned in sub-section (7) shall follow such procedure as may be prescribed, and may confirm, vary or recind the order of the prescribed authority or remand the case to the prescribed authority for re-hearing and pending its decision pass such interim orders as may appear to it to be just and convenient. . . . . " So far as first ground prescribed in Section 12-C (6) is concerned, it is nobody's case that the Prescribed Authority exercised jurisdiction not vested in it by law. Learned Counsel for Opp. Party No. 3 canvassed that it was urged before the District Judge that the Prescribed Authority eschewed from consideration various materials on record and pleading of consequence which, in fact, furnished valid foundation for order of recounting and finding recorded by it wears the taint of illegality and suffers from material irregularity in exercise of jurisdiction and also that the prescribed authority failed to exercise jurisdiction while declining recounting attended with further submission that in case materials on record go to establish that prescribed authority has either failed to exercise jurisdiction or exercised jurisdiction illegally or with material irregularity, the District Judge could interfere with the same. In this regard, I feel called to look into the aspect whether prescribed authority failed to exercise jurisdiction vested in it or acted illegally or with material irregularity in its jurisdiction. The pivotal grounds on which revision was allowed as distilled from the judgment of the revisional Court are that from evidence available on record including statement of Ashok Kumar petitioner it was establishment that 114 votes which were declared invalid were illegally cancelled notwithstanding instructions issued by the Election Commission were to the effect that if against a symbol/name, a person affixes more than on mark of seal that vote cannot be treated or declared as invalid. Further finding is that illegality in reckoning out of consideration those votes is borne out from the statement of petitioner himself. The next finding about illegality pinpointed by the District Judge in his judgment is that instructions issued under Rule 49 of the Rules encapsulated that schedule prepared at the time of counting ought to have been prepared and signed by the supervisor which admittedly having not been done, was an illegality in antagonism to Rule 49 of the Rules. He has also recorded a finding that the Opp. Party No. 3 had made a specific pleading in application under Section 12-C (1) of the U. P. Panchayat Raj Act and those pleadings are established from the record.;