- (1.) Both these writ petitions involve common question of law. The facts are not disputed. Therefore, both the petitions are being decided by this common judgment.
(2.) WRIT Petition No. 69710 of 2005 relates to the election of the Member of Zila Panchayat from Ward No. 25, Salempur Bhaluani Anshik, District Deoria. Polling was held on 20 -10 -2005. In the counting which took place on 27 -10 -2005, the petitioner was found to have secured the highest number of 2712 votes and was declared successful by the Returning Officer on the same day. A certificate was also issued to that effect on 27 -10 -2005, which has been filed as Annexure -1 to the writ petition. It appears that thereafter there was some complaint, upon which recounting, re -tallying of votes was done and based upon that the Returning Officer subsequently issued another certificate on the same day in favour of respondent No. 5, which has been filed as Annexure -5 to the writ petition. Prayer has been made for quashing the certificate issued in favour of respondent No. 5. Writ Petition No. 70197 of 2005 relates to the election of Member of Kshettra Panchayat from Ward No. 42, Govindpur II, Block Mardaha, District Ghazipur. In the counting which took place on 25 -10 -2005, the petitioner was found to have secured the highest number of votes and was declared elected on the same date. The Returning Officer issued certificate too the said effect on the same date, which has been filed as Annexure -1 to the writ petition. Thereafter, it appears that an order for recounting was passed by the Returning Officer on the next day i.e., 26 -10 -2005 fixing 29 -10 -2005 as the date for recounting. It is alleged in paragraphs 9 and 10 that even before the date for recount, the respondent No. 5 was declared elected and on 29 -10 -2005, the respondent No. 4 passed an order declaring respondent No. 5 as elected and directing the petitioner to return the certificate already issued to him. It is this order, which has been challenged in this petition.
(3.) WE have heard learned Counsel for the petitioners, Sri P.N. Rai, learned Counsel for the State Election Commission, learned standing Counsel for the State respondents and the Counsel for private respondents in both the writ petitions and have perused the counter -affidavit filed by the State Election Commission in both the writ petitions and the short counter -affidavit filed by the respondent No. 5 in Writ Petition No. 69710 of 2005.;