- (1.) Petitioner, Smt. Shanti Devi and respondent, Smt. Babua alias Butuwa amongst other were horn-locked in election for the office of Pradhan of Gram Panchayat Kotilihayi, Vikas Khand Manikpur District Banda, held in the year 1995. The petitioner and the third respondent both secured 187 votes each which is the highest number of votes polled amongst the contesting candidates. In an effort to break the stalemate, the respondent no.3 moved an application before the Returning Officer, suggesting that the decision between the two candidates be taken by means of toss. A copy of the application has been annexed as Annexure 1 to the petition. It would appear that the suggestion was not demurred to by the petitioner as a result of which the Returning Officer was induced to the expedient of toss and get the result accordingly. On the coin being flipped it turned the wheel in favour of the petitioner and against the respondent no. 3 and the result was declared accordingly vide order dated 20.4.95. The matter, however, escalated into institution of an election petition under section 12C of the U.P. Panchayat Raj Act, 1947 before the Prescribed Authority, who allowed the petition by means of the order dated 30.3.98 on the ground that declaration of result by toss was contrary to rules. The Returning Officer was accordingly directed by the prescribed Authority to relegate himself to draw of lots for decision on the result between the petitioner and the 3rd respondent. The petitioner preferred a revision against the order of the Prescribed Authority. The revision came to be dismissed by the learned Addl. District Judge(Chatrapati Sahu Ji Maharaj Nagar) vide judgment and order dated 17.7.1998. These are the two orders which are sought to be quashed by certiorari.
(2.) I have heard Sri S.K. Singh, appearing for the petitioner and Sri N.C. Tripathi, appearing for the third respondent. The other respondents are mere formal parties and as such notices were not issued to them.
(3.) Counsel appearing for the petitioner canvassed inter-alia that the third respondent having opted for the result of the election by way of toss, was estopped arguing the toss and articulating in her own interest a self-created illegality after the result went against her. In any case, contended the learned counsel, the result of the election in the present case was not materially affected merely because it was declared by tossing of a coin and not by draw of lot. Sri N.C. Tripathi, appearing for the contesting respondent submitted, in repudiation, that rule 54 of the U.P. Panchayat Raj (Election of Members, Pradhans and U.P. Pradhans) rules 1994, implicitly provides that if after the counting of votes is completed, it is found that any of the candidates have secured equal number of votes and addition of one vote would turn the wheel in favour of any of these candidates, the Election Officer shall forthwith decide between those candidates by draw of lot and proceed as if the candidate on whom the lot falls, had an additional vote and the Returning Officer illegally decided to toss for it; the rule of estoppel by conduct would not operate against statute; the declaration of result by flipping a coin would not meet the standard of practicability in the event of more than two candidates securing equal number of votes; and, therefore, the Prescribed Authority was justified in setting aside the election of the petitioner. The nub of the submission made by the learned counsel is that in the event of contestants securing equal number of votes, the declaration ought to have been made in the manner prescribed by rule 54 of the Rules aforestated and any declaration made in contravention of the Rules, would wear the taint of invalidity on its forehead.;