Madan Mohan Panchhi, J. - (1.) THIS election dispute has arisen in the following manner: - Puran Respondent was elected as Sarpanch of village Panchayat, Mohan, Tehsil Ballabgarh, District Faridabad, having secured the highest votes. An election -petition, predominantly on two grounds, was filed before the Ilaqa Magistrate, Ballabgarh, the prescribed Authority under Section 13 B of the Gram Panchayat Act, 1952. The first one was that Puran had been guilty of the corrupt practice of passing off certain non -existent voters and stoic of them for a number of times. The second ground was that he was in continuous unauthorized occupation of the Panchayat land, which disqualified him from seeking election to the office of the Sarpanch. The matter was contested The Ilaqa Magistrate, vide his order dated 1.8.1985, set aside the election of Puran Respondent on the second ground alone. On the first ground, the decision went in favour of Puran Respondent As a result thereof, the election of Puran Respondent was set aside and Sham Singh, the present Petitioner, who had secured the second highest votes, was declared elected as the Sarpanch.
(2.) PURAN preferred an appeal in the District Court It was Shri S D. Anand, Additional District Judge (III), Faridabad, who was assigned the appeal. Vide order dated 28.2.1985 (Annexure P 3), the Additional District Judge accepted it and remanded the case back to the Prescribed Authority for readmission. It is against this order that the present writ -petition has been filed by Sham Singh Petitioner, and Dharam Singh election -Petitioner. During the course of hearing the petition, records of the Prescribed Authority were summoned in order to appreciate the comments of the learned Additional District: Judge, forthcoming in paragraphs 10 to 12 of his judgment under attack The finding of the Additional District Judge is that the evidence recorded by the Prescribed Authority has been recorded piece -meal and the same does not bear, at various places, the signatures/initials of the Presiding Officer the dates on which each statement was recorded Further, it has keen observed that each statement does not bear any certificate to the effect that the statement, and that recorded on different occasions, had been read over and admitted by the witness concerned to be, correct On this ground, the learned Additional District Judge, in the concluding portion of paragraph 11 of his judgment, observed that the entire trial of the election -petition by the Prescribed Authority was vitiated and in violation of the Gram Panchayat Act That view of the learned Additional District Judge was not the only reason for remanding but he further went on to observe that proper issues had not been framed with regard to the allegations of corrupt practice of passing off voters etc. He then framed an issue in that regard to the following effect: - Whether the voters -list recorded the name of wife of Puran at two places, that of the wife of Ram Wati at two places and that of Khichu also at two places, whether votes at the impugned election were got cast in the name of those ladies to the notice of Puran ? If so, to what effect ?
(3.) SO far as the newly framed issue by the learned Additional District Judge is concerned, learned course) for the Petitioners has strenuously urged that the course adopted by the learned Judge is illegal and unwarranted. He maintains that the election -Petitioner Dharam Singh was satisfied with the order of the Prescribed Authority when the finding on this aspect of the case had gone against him and the matter was not in issue at all in appeal It is further stressed that a dead issue has unnecessarily been raked up when all concerned had accepted the finding of the Prescribed Authority. And this, according to the learned Counsel, has been added in order to lend support to the other view which, on the face of it, was rather shaky Learned Counsel for the Petitioners has further gone on to say that he does not wish to press this issue at all before the Prescribed Authority in the event of the order of remand being sustained. Learned Counsel for the Respondents, en this aspect of the case as to whether the issue is contentious or not, does not join issue with the counsel for the Petitioner. It is thus clear that the issue is not contentious on the stance adopted by the learned Counsel for the writ -Petitioners. Then obviously, this part of the order of the learned Additional District Judge is a superfluity and necessarily has to be taken as non existent. Even otherwise, from the record it is clear that, such plea was not raised when the matter was argued before the learned Additional District Judge. It was not an issue which could be raked up unless the election Petitioner had specifically raised it as an alternative in order to get maintained the order under appeal. It could not be raised en his own by the learned Additional District Judge. Thus, this aspect of the case would require no further attention.;