I.M.Quddusi, J. - (1.) These are three connected appeals arising out of the same judgment and order dated 26.9.1996 passed by IVth Additional District Judge, Shahjahanpur in Jaydrath Singh v. Jivendra Kumar and others, Election Petition No. 1 of 1995. The learned court below while allowing the election petition declared opposite party No. 1 before him, namely, Jivendra Kumar to have become disqualified to be the Adhyaksha.
(2.) Brief facts of the case are that Jaydrath Singh and Vijai Pratap Singh, who are appellants in First Appeal No. 706 of 1996 filed, an election petition under Section 27 (2) of Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 (thereinafter referred to as "the Act") read with Rule 33 of Uttar Pradesh Zila Panchayats (Election of Adhyaksha and Up-Adhyaksha and Settlement of Election Disputes) Rules. 1994 (hereinafter described as the "Rules") against the election of Jivendra Kumar (appellant in First Appeal No. 428 of 1996) declaring him elected as Adhyaksha. Zila Panchayat, Shahjahanpur by the Returning Officer. They claimed themselves to be the electors and member of Zila Panchayat Shahjahanpur. The main averments made in the election petition were that in accordance with the notification issued by U. P. Government followed by a notification issued by the District Returning Officer/District Magistrate, the date for nomination was fixed 16.5.1995 and for polling and counting of votes 22.5.1995. The candidates who contested the election were Jivendra Kumar. Manvendra and Shrimati Gayetri Verma. The election was held as per schedule and counting of votes started at about 2.00 p.m. on the same date. There were 31 electors/voters in all and all the 31 voters polled their votes. During the first counting, the candidates got the following number of first preference votes : I. Jivendra Kumar 10 II. Manvendra 14 III. Smt. Gayetri Verma 7 According to Rule 26 of the rules and para 6 of Schedule II, which gives the Formula for determination of results, the quota was fixed as 16 votes but as no candidate could achieve first preference votes equivalent to the quota prescribed, Shrimati Gayetri Verma who had secured lowest number of first preference votes (only 7 votes) was eliminated and the Returning Officer then was to consider second preference votes in favour of remaining two candidates. The second preference votes secured by the remaining two contesting candidates were as follows : I. Jivendra Kumar 5 II. Manvendra 1 The remaining electors did not exercise their second preference vote. After elimination of Shrimati Gayetri Verma at the end of the second counting votes, the position of each candidate remained as under : I. Jivendra Kumar 10 + 5 = 15 II. Manvendra 14 + 1 = 15 Thus both the candidates secured equal votes as a result of which the Returning Officer decided to draw a lottery and even on the basis of the lottery Jivendra Kumar was declared elected. However, protest and objection was raised by Manvendra. The following prayer was made in the election petition: "(a) declare the election of Shri Jivendra Kumar, respondent No. 1 as null and void. (b) declare that respondent No. 2 Shri Manvendra has been duly elected as Adhyaksha of Zila Panchayat. Shahjahanpur. (c) issue any other order granting any other relief which Court may deem just and proper in the nature and circumstances of the case. (d) award cost of the petition." Written statements were filed by Manvendra, Jivendra Kumar and Shrimati Gayetri Verma separately. In the written statement filed by Jivendra Kumar, it was stated that the lottery was drawn after the written consent of respondent No. 2 and his Agent Sri Ram Autar Misra and the then M.L.A. and respondent Manvendra filed a writ petition in this Court which was dismissed on 6.2.1996, on the ground that he should first file an election petition. In the written statement, Manvendra has stated that the candidate who had secured the maximum number of first preference vote was entitled to be declared elected which had not been followed by the Returning Officer and thus the Returning Officer erred in law and, as such, the declaration given by the Returning Officer is contrary to law and is liable to be set aside. It was further contended that the written consent given by him to draw the lottery cannot be treated as estoppel as there cannot be any estoppel against the statutory provisions of law. In the written statement of Shrimati Gayetri Verma it was urged that the Returning Officer adopted recourse to draw lottery against the provisions of law which was opposed by her and other candidates but the Returning Officer did not pay any heed and declaration of Jivendra Kumar as elected was illegal and against the law.
(3.) It may be mentioned here that Manvendra had filed a Writ Petition No. 16012 of 1995 in this Court in which a declaration in favour of Jivendra Kumar was sought to be quashed which was dismissed on 16.2.1996 on the ground of maintainability in view of the availability of remedy, as provided, by filing election petition was open to the petitioner but he did not prefer to file an election petition. Jivendra Kumar also filed Writ Petition No. 28658 of 1996 in this Court by which the impugned order, which was under challenge, was passed by the IVth Additional District Judge. Shahjahanpur in the aforesaid election petition refusing to decide the question whether the election petition was maintainable as a preliminary issue (Issue No. 2). On this a decision was made on 6.9.1996 directing the learned Additional District Judge to decide the said question as a preliminary issue and if he holds that the election petition is not maintainable, then he will straightaway dismiss the election petition but if he holds that the election petition was maintainable, the writ petitioner will not be permitted to challenge the said order straightaway by way of appeal, revision or writ petition but the entire election petition will be decided within 15 days thereafter in accordance with law and if the petitioner is aggrieved by that final order in the election petition, it will be open to him to challenge the same while challenging the flnal order. The writ petition was disposed of finally.;