D.K.Seth - (1.) CHALLENGING the election of Pradhan in the Gram Panchayat, an application under sub-section (1) of Section 12C of U. P. Panchayat Raj Act was filed by respondent No. 3 on 27.4.1995. The said case was registered as Case No. 3 under Section 12C of U. P. Panchayat Raj Act (hereinafter referred to as the Act). By an order dated 31.5.1995, an order for re-counting was passed which is Annexure 3 to the writ petition. The petitioner by means of revision under subsection (6) of Section 12C of the Act challenged the said order dated 31.5.1995. The said revision was registered as Misc. Case No. 79 of 1995. By an order dated 18.7.95 the said revision was dismissed, inter alia, with the observation that there was nothing illegal in the direction for re-counting of ballot papers. By means of present writ petition the petitioner has challenged the order dated 31.5.1995 passed in case No. 3 as well as the order dated 18.7.1995 passed in Misc. Case No. 79 of 1995.
(2.) SRI Asthana, learned counsel appearing on behalf of respondent No. 3, raised a preliminary objection that since the revision against interlocutory order is not maintainable, therefore, the petitioner cannot maintain the present writ petition against the revisional order. Sri Manoj Misra, learned counsel for the petitioner contends that even if the revision is not maintainable, still then the petitioner can very well maintain the writ petition against interlocutory order passed in Election Petition, being order dated 31.5.1995, after allowing the benefit under Section 14 of the Limitation Act for the delay. Limitation Act, as such, does not apply to the writ proceeding, but still then principle of reasonable proximity of time is considered for the purposes of finding out diligence and laches on the part of the petitioner. In this case, it cannot be said that the petitioner was not diligent or was responsible for the laches. Inasmuch as on a wrong advice, he had preferred a revision, even then the order was passed on 31.5.1995, whereas the writ petition was moved on 7.8.1995, which in itself cannot be said to be unreasonable delay.
(3.) SO far as the question of maintainability of a revision is concerned, the revision is provided in sub-section (6) of Section 12C of the U. P. Panchayat Raj Act, which runs as under : "(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." Sub-section (6) provides revision against the order of the Prescribed authority upon an application under sub-section (1). The Legislature has used expression "an order" and it could have used 'any order', if it had intended that interlocutory order can also be intended to be revised. When the Legislature has chosen to use the expression 'an order' it has clearly expressed its intention to make 'an order' passed on the application under sub-section (1) revisable, But the reference to the phrase "upon an application under sub-section (1)" clearly indicates that 'an order' on the application under sub-section (1) is revisable, it does not say that any other order passed on any other application in connection with the application under sub-section (1) ; instead of using the phrase 'an application under sub-section (1)' the Legislature could have used the expression "in the proceeding". The very use of the expression as laid down in the said sub-section clearly indicates the intention of the Legislature only to the order passed on the application under sub-section (1), means final order. My above view finds support from the decision in the case of Bhagwat Prasad Misra v. Sub-Divisional Officer Salon, 1985 UPLBEC 115, wherein it has been held as under : "9. Section 12C (1) contemplates the questioning of an election by means of an application. It is the disposal of this application by a specific order which has been made revlsable under Section 12C (6) of the Act. The order Impugned in the writ petition is an Interlocutory order by which the application for recounting of votes has been allowed by the Sub-Divisional Officer. This order cannot be said to be an order disposing of the election petition filed under Section 12C (1) of the Act. Consequently, the order impugned in the petition would not be covered by the provisions of subsection (6) of Section 12C of the Act. The petitioner, in the circumstances, cannot be said to have had an alternative remedy." Therefore, the revision against an interlocutory order passed under Section 12C of the Act is not revisable. But at the same time, extraordinary remedy under Article 226 of the Constitution is made for invocation in extraordinary cases where there is no other remedy available. The remedy by way of invoking of writ jurisdiction cannot be precluded by any means. Therefore, writ proceeding is very well maintainable against interlocutory order in a proceeding under Section 12C of the Act in appropriate cases though the Court should be very slow in interfering unless appropriate case is made out within the guideline laid down by the Full Bench in the case of Ram Adhar Singh v. District Judge, Ghazipur, 1985 UPLBEC 317, in the matter of order for re-counting of votes. In the said judgment, it has been laid down as to on which stage and in what circumstances such orders should be passed and what are the tests to be satisfied before such an order could be issued. In the present case, as contended by Sri Asthana, rightly, the revision against interlocutory order passed in a proceeding arising out of an application under Section 12C (1) of the Act is not maintainable. But by reason of the . observations made above, though the writ petition is not maintainable against the revisional order dated 18.7.1995, yet the same is maintainable against the order dated 31.5.1995. A plain reading of the order dated 31.5.1995 does not show that the tests as laid down in the case of Ram Adhar Singh (supra) has been satisfied.;