H.N. Seth, J. - (1.) BY this petition under Article 226 of the Constitution, Petitioner Ram Adhar Singh questions the validity of the order/judgment of the District Judge Ghazipur dated 5 -9 -1983 (Annexure -6 to the writ petition) whereby he allowed the revision application filed by Bechu Ram (Respondent No. 21 and directed that the order of the Sub -Divisional Officer, Ghazipur, dated 30 -4 -1983 (Annexure -5 to the writ petition) be set aside.
(2.) BRIEFLY stated the facts giving rise to the present petition are that on 11 -4 -1982 Bechu Ram, Respondent No. 2, was declared elected as Pradhan of Gaon Sabha Sakia, District Ghazipur. Petitioner Ram Adhar Singh, one of the candidates, who contested the said election, filed an election petition under Section 12 -C of the U.P. Panchayat Raj Act before the Sub -Divisional Officer on 15 -4 -1982 and questioned the election of Bechu Ram inter -alia on the ground that there had been improper counting of votes and claimed that after correctly counting the votes be should be declared to have been duly elected as Pradhan of the Gaon Sabha. Bechu Ram contested the petition and filed a written statement (Annexure -1 to the counter affidavit) refuting various allegations made in i he election petition and asserting that the counting of votes had been done in the presence of Petitioner and his election agent strictly in accordance with the rules. On 29 -4 -1982 the Petitioner made an application before the Sub -Divisional Officer Ghazipur end prayed that in the interest of justice all papers including the sealed ballot papers in connection with the said election be summoned and after inspecting the same a memorandum be prepared. The Sub -Divisional Officer made an order dated 11 -5 -1982 summoning the documents mentioned in the aforesaid application. Bechu Ram then filed an application on 22 -5 -1982 objecting to the summoning of the election record and prayed that the order dated 11 -5 -1982 be recalled. The Sub -Divisional Officer, vide his order dated 27 -5 -1982, rejected the prayer made by Bechu Ram and thereafter fixed 2 -8 -1982 as the date for recounting of votes. The votes were accordingly recounted on 2 -8 -1982 in the presence of counsel for the parties and a memorandum with regard to valid and invalid votes was prepared which showed that whereas Bechu Ram election symbol -pen and inkpot) had secured only 331 valid votes as against 380 votes shown by the election officer and that Ram Adhar Singh (election symbol -tractor) had secured the highest number of valid votes, i.e. 366 as against 363 votes shown by the Election Officer It was only after the votes had been recounted as aforesaid that the parties subsequently led oral evidence in the case on 22 -9 -1982. The Sub -Divisional Officer relying upon the memorandum prepared by him, after inspection and recounting of votes on 22 -8 -19882, held that the Returning Officer had not counted the votes correctly and that Ram Adhar Singh, who had pelled the highest number of votes, was entitled to the declaration that he had been elected as Pradhan of the Gaon Sabha It was contended before the Sub -Divisional Officer that before 2 -8 -1982 there was absolutely no material before him which could justify a direction for inspection of the ballot papers and recounting of votes and as such he should not in deciding the election petition, take the memorandum prepared by him on that date into consideration In this connection the Sub -Divisional Officer noticed the observations made in the cases of Kali Prasad v. Prescribed Authority (SDO) Pratapgarh, 1980 ALJ 378, Ram. Avtar Singh Bhcdoria v. Ch. Ram Gopal Singh : AIR 1976 SC 43 and Parashu Ram Singh v. Sub -Divisional Officer Ballia. : 1980 AWC 137and observed that he had, in the light of aforementioned decisions, ample jurisdiction to direct recounting of votes as he was satisfied in this regard on the basis of the pleadings contained in the election petition. We, however, repelled all other pleas raised by Ram Adhar Singh for questioning the validity of Bechu Ram's election. In the result, he, vide his order dated 30 -4 -1983, allowed the election petition and after setting aside the election of Bechu Ram declared that Ram Adhar Singh had been duly elected as Pradhan of the Qaon Sabha.
(3.) AGGRIEVED , Bechu Ram applied to the District Judge for revision of the order »of the Sub -Divisional Officer on the ground that the Sub -Divisional Officer had acted illegally in directing the inspection and recount of votes on 2 -8 -1982 and in setting aside the election on the basis of the memorandum prepared in pursuance of such inspection and recount. It was contended before the learned District Judge that the pleading of Ram Adhar Singh, with regard to wrong counting of votes, was absolutely vague. No specific matter of improper counting was averred in the petition. Not only this, no evidence whatsoever, had been led even to prima facie support the case of improper counting of votes and as such on the principles laid down by a Division Bench of this Court in the case of Kali Prasad v. Prestribed Authority, 1980 ALJ 378 and Ram Avtar Singh Bhadoria v. Ram Gopal Singh : AIR 1975 SC 182, the Sub -Divisional Officer had no jurisdiction to direct recounting of votes and the decision taken by him on the basis of illegal recounting was liable to be set aside. This plea prevailed with the District Judge who held that the Sub -Divisional Officer had no jurisdiction to direct the recount on 2 -8 -1982 and inasmuch as his judgment and order were solely based on the result of the recount, and same could not be upheld. In the result, he allowed the revision and set aside the order of the Sub -Divisional Officer dated 30 -4 -1983.;