Full Judgment
P.K. Jain, J.
1. Heard Sri Mahendra Pratap, learned Counsel for the petitioner and Sri R.K. Misra, learned Counsel for respondent No. 3 as well as learned Standing Counsel appearing for respondents No. 1 and 2 No one appear for remaining respondents.
2. An election of Pradhanship was contested between respondent No. 3 and the petitioner and respondents No. 4 to 8. The petitioner was declared elected. Respondent No. 3 filed an application under Section 12-C (1) of Panchayat Raj Act challenging the election of the petitioner on various grounds as contained in Annexure-1 to the writ petition, It appears that during hearing of the election petition a prayer was made before the learned S.D.O. for recounting of the ballots which application was allowed by the impugned order as contained in Annexure-7.
3. This order dated 22-6-96 is sough to be quashed through the present writ petition on the ground that there was no material before the learned S.D.O. on the basis of which recounting was necessary. It is submitted that in the election petition no ground was taken from which recounting was permissible. Learned Counsel for the respondent has submitted that in the writ petition it was specifically stated that voters in the voter list at serial No. 476, 496 and 604 had already died before election had taken place and their fictitious votes were case by impersonating and this had affected the result of the election besides other ground taken by the respondent No. 3. It is also submitted that remedy by way of revision lies before the District Judge and since there is alternative remedy the petition should not be entertained.
4. As to the preliminary objection taken by the learned Counsel for the respondent No. 3 it may be pointed out that Sub-section '(6) of Section 12-C provides that:-
'(6) any party aggrieved by an order of the prescribed authority upon an application under Sub-section (i) 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 it 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 its jurisdiction illegally or with material irregularity.'
5. A revision under Sub-section (6) is cognizable against an order on the application under Sub-Section (1) of Section 12. It is only the final order passed on such an application which can be treated as an order on an application under Sub-section (1). During the course of proceeding on an application under subsection (1) of Section 12-C any order passed by the authority concerned cannot be deemed to be an order upon an application under Sub-section (1). It is only the final order against which revision is cognizable under Sub-section (6) of Section 12-C. The impugned order in the present case is not the final order. This is only an interim order whereby the recounting has been ordered. Therefore, the preliminary objection is not sustainable.
6. As regards, the contention of the learned Counsel for the petitioner that the petition as contained in, Annexure-1 does not make out any ground for recounting these substance in the contention of the learned Counsel for the petitioner. Merely because an allegation has been made in the petition that certain voters shown in the list of voters, had died before conduct of the election and some body personating them had cast vote is not a ground for recounting. Learned Counsel has placed reliance on a decision in Ram Adhar Singh v. District Judge Ghazipur, 1985 Alld. Law Journal 615, wherein a Full Bench of this Court has held that 'Applying the principal with regard to inspection of ballot papers enunciated by the Supreme Court in cases arising under the Representation of the People Act to an election petition dealt with under the provisions of the UP. Panchayat Raj act, there is no escape from the conclusion that before an authority hearing the election petition under the said Act can be permitted to look into or to direct inspection of the ballot papers, following two conditions must co-exist:
(1) that the petition for setting aside an election contains the grounds on which the election of the respondent is being questioned as also the summary of the circumstances alleged to justify the election being questioned on such ground; and
(2) the authority is, prima facie, satisfied on the basis of the materials produced before it that there is ground for believing the existence of such ground and that making of such an inspection is imperatively necessary for deciding the dispute and for doing complete justice between the parties.
It, therefore, follows that in the absence of any specification with regard to the ground on which the election of the respondent is being questioned together with summary of the circumstances alleged to justify the election being questioned on such ground, it is not open to the authority dealing with an application under Section 12-C of the UP. Panchayat Raj Act, either to look into or direct inspection of ballot papers merely on the ground that it feels that it would be in the interest of justice to look into or permit inspection of the ballot papers. In the context, such satisfaction has necessarily to be based on specific averments made in and the materials indicated in the election petition which could, prima facie, satisfy the authority about the existence of the ground on which the election is sought to be questioned.
7. As already pointed out above, the petition does not make out any ground for recounting. Therefore, the order passed by the S.DO. was not justified and in accordance with law.
8. Writ petition is, therefore, allowed. Impugned order is quashed. Parties shall bear their own cost.