- (1.) D. K. Seth, j. The respondent No. 2 filed an application under Section 12-C of. the U. P. Panchayat Raj Act, which was registered as Election Petition No. 6 of 1995. In the said case the respondent No. 2 filed on application on 23-5-1995 praying for calling for the record of the election from the Election Office and for some other interim order restraining the petitioner from taking over charge as Pradhan. By an order dated 15- 12-1995 the said application was allowed and the record of the impugned election were called for. It is against this order the petitioner has moved the present writ petition.
(2.) SRI M. C. Singh, learned Counsel appearing on behalf of the petitioner con tends that in the present case neither issues have been framed nor evidence had been led. There was no material available before the court to form an opinion as to the existence of the conditions as enumerated in the case of Ram Adhar Singh v. Sub-Divisional Officer, 1985 UPLBEC 317. Therefore, the said order cannot be sustained. He also relied on various decisions, which will be referred to shortly hereinafter, in support of his contention is two-fold; first, that in absence of any material and in absence of the conditions laid down in Ram Adhar Singh's case the court cannot pass any order for calling for the record and direction for recounting. Secondly, that while deciding the petition under Section 12-C of the said Act the Court does not have any power to grant any interim order. Whereas by allowing the said application dated 23- 5-1995 the court had allowed the prayer for restraining the petitioner from taking over charge as Pradhan and from carrying on the activities of Pradhan. Therefore, such an order cannot be sustained. Sri Sanjay Kumar Singh, learned Counsel appearing on behalf of respondent No. 2, on the other hand contends that there are sufficient material to satisfy the court that the conditions laid down in the case of Ram Adhar Singh (supra) were in existence and, therefore, there is no infirmity in the said order for calling for the records of election from the Election Office. Drawig my attention to the said order while translating the same at the Bar Sri Sanjay Singh, learned counsel appearing on behalf of respondent No. 2, submits that the order is perfectly legal and valid since the order records satisfaction and existence of the material for arriving at such con clusion. He further contends that the petitioner had won the election after there was tie by a margin o:' one vote which was allotted to him in compliance of Rule 108 of the U. P. Panchayat Raj (Election of Members, Pradhans etc.) Rules, 1994. Accord ing to him in such a situation when '74' votes polled by the petitioner was cancelled and '116' votes polled by the respondent No. 2 was cancelled it was more necessary, by reason of the fact in itself to presume that there might be reason due to which the records are required to be inspected. He also drew my attention in support of his contention to the decision in Ram Adhar Singh's case (supra ). He further relied on certain other decisions, which will be referred to shortly, hereinafter. From the translation made at the Bar, translating the prayer made in the said application dated 23-5- 1995, it appears that there was comhind prayer for calling for the record of the election and for restraining the petitioner from taking over charge of the Office of Pradhan and carrying on the activity of Pradhan. Therefore, the moment by the order dated 15-12-1995, as I understand from the translation made at the Bar, the application is allowed, it allows the entire prayer made in the said application dated 23-5-1995. 1 further understand that in the said order the court had called for the record of election.
(3.) SECTION 12-C in itself does not make any provision by which the authority deciding the election petition, can derive jurisdiction to grant interim order, staying the result or the effect of the election. Neither the Rules have prescribed any such power to the authority to pass any interim order declaring the Pradhan to have been invalidly elected or restraining him either from taking over charge or from perform ing the duties of Pradhan. In order to appreciate the question as to whether the Prescribed Authority has power or jurisdiction to grant interim order, it is necessary to refer to sub-sec tions (4), (5), (6), (7), (8) and (9) of Section 12-C of the said Act- " (4) The authority to whom the application under sub-section (1) is made shall, in the matter of- (i) hearing of the application and the procedure to be followed at such Bearing; (ii) setting aside the election or declaring the election to be void ox declaring the applicant to be duly elected or any other relief that may be granted to the petitioner, have such powers and authority as may be prescribed. (5) Without prejudice to generality of the powers to be prescribed under sub section (4) the rules may provide for summary hearing and disposal of an application under sub-section (1 ). (6) Any party aggrieved by an order of the Prescribed Authority upon an ap plication 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 its 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 this 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 proce dure as may be prescribed, and may confirm, vary or rescined 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 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. ";