- (1.) This writ petition is directed against the order of the Sub-Divisional Officer, Sadar, District Hardoia, passed on 12-1-1993 by which Election Petition filed by opposite party No.2 under Section 12C of U.P. Panchayat Raj Act, 1947 was allowed and the election of the petitioner as Gram Pradhan of village Sankh, Pargana and tehsil Sandila, district Hardoi was set aside.
(2.) On an application filed by Sri Vyas Deo Tripathi, opposite party No.2 the Sub- Divisional Officer, Hardoi who exercises powers of the Prescribed Authority for deciding Election Petitions under the U.P. Panchayat Raj Act, 1947, made an order for recounting of the votes cast in the election which was the subject-matter of the election petition in which the petitioner was declared elected. The said order of the Sub-Divisional Officer ordering recounting of votes was challenged by the petitioner by filing a writ petition in this Court under Art.226 of the Constitution of India. That writ petition was dismissed by this Court by the judgment and order dated 6-3-1992. The petitioner then challenged the order of recounting in the Supreme Court under Art.136 of the Constitution of India through Special Leave Petition. The Supreme Court dismissed the Special Leave Petition and upheld the order of recounting by its judgment and order dated 1-12-1992. Ultimately recounting of the votes in pursuance of the order dated 6-3-1992 took place and in the recounting of the votes which were cast in the election of Pradhan of the Gaon Sabha it was found that the petitioner had polled 609 valid votes whereas opposite party No. 2, who was the petitioner in the Election Petition, had polled 517 valid votes. The Prescribed Authority accordingly allowed the Election Petition and declared opposite party No.2 Sri Vyas Deo Tripathi as having been duly elected Gram Pradhan of village Sankh, Pargana and Tahsil Sandila, district Hardoi by the impugned order under challenge in this writ petition.
(3.) At the outset the learned counsel for the opposite party No.2 took objection to the entertainability of the writ petition on the ground that the order under challenge in the writ petition is open for review by the District Judge by way of revision as provided by sub-section (6) of Section 12C of the Act and, therefore, this Court should not entertain the writ petition and dismiss the same on the ground of alternative remedy. Learned counsel for the petitioner repelled this contention of the learned counsel for opposite party No. 2 of the ground that since the order of the Prescribed Authority under challenge was passed without affording an opportunity of hearing to the petitioner, therefore, the order being void ab initio can be challenged before this Court without taking recourse to the statutory remedy under sub-section (6) of Section 12C of the Act. For a proper application of the argument raised by the learned counsel for the parties it is necessary to extract the provisions of sub-sections (6), (7), (8), and (9) of Section 12C of the Act. The aforesaid provisions are as follows: (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 or more of the following grounds, namely: (a) that the prescribed authority has exercised a jurisdiction not vested 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, (7) The District Judge may dispose of the application for revision himself or may assign it for disposal to any Additional District Judge, Civil Judge or Additional Civil Judge under his administrative control and may recall it from any such officer or transfer it to any other such officer. (8) The revising authority mentioned in sub-section (7) shall follow such procedure as may be prescribed, and may confirm, vary or rescind the order of the prescribed authority or remand the case to the prescribed authority for rehearing and pending its decision pass such interim orders as may appear to it to be just and convenient. (9) The decision of the prescribed authority, subject to any order passed by the revising authority under this section, and every decision of the revising authority passed under this section, shall be final.";