RAJAN ROY ,J. - (1.) This is a writ petition under Article 226 of the Constitution of India challenging an order dated 29.3.2017 passed in Revision No.38 of 2016, Devendra Singh v. Ashok Kumar and ors., by the Revisional Authority under section 12C(6) of the U.P. Panchayat Raj Act 1947 (hereinafter referred as 'Act 1947').
(2.) The facts of the case in brief are that elections were held to the office of Gram Pradhan, Village Ismailmau, Pargana and Tehsil Dalmau, District Raebareli, on 10.12.2015 at Booth No.20 and 21. It is the admitted case of the contesting parties represented through Sri V.K. Pandey, learned counsel for the petitioner and Sri Shireesh Kumar, Advocate for the opposite party no.6 as also the learned Standing Counsel for the official opposite parties that the total number of voters was 1336. After polling, the votes were counted and the petitioner Ashok Kumar was declared elected having secured four votes more than the opposite party no.6. An election petition was filed by the opposite party no.6 under section 12C(1) of the Act 1947 before the Prescribed Authority who was the Sub Divisional Magistrate but the same was dismissed vide order dated 2.12.2016, against which a revision was filed by the opposite party no.6 Devendra Singh which was allowed by the Revisional Authority who was the Additional District Judge Court No.4, Raebareli, vide his judgment dated 29.3.2017 setting aside the order of the Prescribed Authority and remanding the matter back to him. Against the said judgment the petitioner filed this writ petition wherein an interim order was passed on 8.5.2017 staying further proceedings before the Prescribed Authority pursuant to the remand order passed by the Revisional Authority.
(3.) The contention of Sri V.K. Pandey, learned counsel for the petitioner, in nutshell, was that the Revisional Authority has transgressed his jurisdiction in engaging himself in a roving and fishing inquiry to find out errors in voting and counting based on Form-11 and its comparison with Form-6 and Form-7 whereas in the pleadings of the election petition material and necessary particulars in this regard were not mentioned. There was no tangible evidence on record which could sustain the findings recorded by him nor the order of remand, as, according to him, the order of the Prescribed Authority does not suffer from any error. Sri Shireesh Kumar, learned counsel appearing for the opposite party no.6 tried to sustain the order of the Revisional Court by inviting attention of the Court to the reasoning given by it. It is the case of the election petitioner/opposite party no.6 that although a total of 1073 votes had been polled, only 1068 votes had been counted and 5 votes which had been polled in his favour had not been counted and had been kept aside. The burden was on him to prove his case.;