JUDGMENT
G.P. Mathur, J.
1. This petition under Article 226 of the Constitution
has been field for quashing the orders dated 24.6.1997 passed by the prescribed authority and 7.3.1998 passed by the Addl. District Judge, Ballia.
2. The dispute relates to election for the office of Pradhan of Gram Panchayat, Charwa Barwa, which is reserved for a male Scheduled Caste person. The last date for filing the nomination papers was 27.3.1995 and the election was held in April, 1995. In all, nine persons filed their nomination papers. After the election and counting of votes, the writ petitioner Om Prakash was declared to have been elected as Pradhan as he had secured highest number of votes. Niranjan Das-respondent No. 4 filed an election petition under Section 12C of the U.P. Panchayat Raj Act (hereinafter referred to as the Act) challenging the election of Om Prakash on several grounds and the main ground was that he did not belong to Scheduled Caste Community. The prescribed authority by his order dated 24.6.1997 allowed the election petition, set aside the election of Om Prakash and declared the election petitioner Niranjan Das as duly elected Pradhan of Gram Panchayat. The revision preferred by Om Prakash against the aforesaid order was dismissed by the Addl. District Judge on 7.3.1998. It is these orders which are impugned in the present writ petition.
3. Dr. R. G. Padia learned counsel for the petitioner has submitted that the learned Addl. District Judge did not apply his mind to the facts of the case and did not consider the evidence adduced by the parties and therefore, the same is liable to be set aside. The power of revision is conferred by sub-section 16) of Section 12C of the Act which reads as follows :
“(6) Any party aggrieved by an order of the prescribed authority upon an application under subsection (1) 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.”
A bare perusal of sub-section (6) of Section 12C will show that it la akin to Section 115, C.P.C. The revisional court has very limited Jurisdiction and it can interfere only where the prescribed authority has exercised a jurisdiction not vested in it by law or has failed to exercise its jurisdiction so vested or has acted in exercise of its Jurisdiction illegally or with material irregularity. It is not the function of the revisional court to go into the facts after reappraisal of evidence. If the Additional District Judge did not refer to the evidence on record, it cannot be said that he committed any illegality or has violated the provisions of sub-section (6) of Section 12C of the Act. The learned counsel has failed to point out as to how the order of the prescribed authority suffered from any error of jurisdiction which would warrant interference by the revisional court. Therefore, the contention raised by Dr. R. G. Padia has no substance.
4. Dr. Padia has next submitted that Om Prakash had filed several documents which conclusively established that he belonged to ‘Gond’ community which comes within the Scheduled Caste but the aforesaid documents were not taken into consideration by the prescribed authority and as such, the findings recorded by him are completely vitiated and are liable to be set aside. In this connection, he has referred to Annexures-1 to 5 to the writ petition which are certificates by Tehsildar, Transfer Certificate of the School, Certificate by Rastriya Inter College, certificate by former Pradhan of the Gram Panchayat and a certificate issued by Gond Mahasabha. In these documents, the writ petitioner Om
Prakash is shown to be belonging to Gond caste which is admittedly a Scheduled Caste. It may be mentioned here that the prescribed authority has accepted the plea of election petitioner Niranjan Das to the effect that the writ petitioner Om Prakash is ‘Kandu’ by caste which does not come within the Scheduled Caste community. Sri Madhur Prakash, learned counsel for the respondent No. 4, has submitted that the documents which have been filed as annexures to the writ petition and which show that the petitioner belongs to Gond community were not filed before the prescribed authority during the course of the hearing of the election petition. This plea has been specifically taken in para 3 (D) of the counter-affidavit. In the writ petition. It is nowhere averred that the documents which are filed as Annexures-1 to 5 were actually filed before the prescribed authority and were part of the record of the case. No doubst in rejoinder-affidavit, it is averred that the documents were filed before the prescribed authority but in absence of positive assertion to that effect in the writ petition, the bald assertion made in the rejoinder-affidavit cannot be accepted. The writ petitioner should have substantiated his case by producing the certified copy from the record of the election petition and filing the same in this Court. He could have also filed a certified copy of a question are that the aforesaid documents were part of the record of the prescribed authority. However, the writ petitioner did not choose to adopt any such course and after a counter-affidavit had been filed taking a specific plea that the documents in question had not been filed, an assertion is made in the rejoinder-affidavit to the effect that the documents were on the record of the case. As the pleading stand, I am not prepared to believe the version of the writ petitioner that he had filed the documents before the prescribed authority. Since the documents were not part of the record of the case, the question of considering them by the prescribed authority did not arise at all. Therefore, the second contention raised by Dr. Padia must be rejected.
5. Dr. Padia has next urged that the relief given by the prescribed authority is illegal inasmuch as after holding that the writ petitioner Om Prakash did not belong to Scheduled Caste community, the prescribed authority should have directed for holding a fresh election and the order passed by him declaring the election petitioner Nlranjan Das as Pradhan is illegal. It may be mentioned here that in all nine persons contested the election out of whom Om Prakash secured 569 votes and election petitioner Niranjan Das secured 556 votes. The only ground for declaring Niranjan Das as Pradhan of the Gram Panchayat is that he secured highest number of votes amongst the remaining candidates. According to the learned counsel for the petitioner, the course adopted by the prescribed authority is illegal as the votes cast in favour of Om Prakash (returned candidate) could not be deemed to have been thrown away. In support of his submission, he has placed reliance on O. K. Sharma v. Ram Saran Yadav, AIR 1993 SC 95. Sri Madhur Prakash learned counsel for respondent No. 4 has submitted that the prescribed authority had passed a valid order in view of Rule 4 (3) of U. P. Panchayat Raj (Settlement of Election Disputes) Rules, 1994, which reads as follows :
“(3) If the Sub-Divisional Officer finds that the election of any person was invalid he shall either :
(a) declare a casual vacancy to have been created ; or
(b) declare another candidate to have been duly elected, whichever course appears, in the particular circumstances of the case, to be appropriate, and in either case may award costs at his discretion :
Provided that no such declaration shall be made unless a claim for it has been made in the application.”
6. I have considered the submissions made by the learned counsel for the parties. In the election petition, no such plea was taken that the voters were aware of the fact that Om Prakash did not belong to Scheduled Caste community and consequently was not qualified for the office of Pradhan of Gram Panchayat Charwa Barwa. Similarly, no evidence has been adduced that the voters being fully aware of the aforesaid fact cast their votes in favour of Om Prakash. In absence of any such plea and evidence on record. It cannot be held that votes cast in favour of Om Prakash were thrown away. As mentioned earlier, there were nine candidates who contested the election for the office of Pradhan. Therefore. Niranjan Das could not be declared to have been elected as Pradhan only on the ground that Om Prakash who had secured highest number of votes was not qualified to contest the election.
7. Sri Madhur Prakash has
submitted that it was not open to the writ petitioner Om Prakash to challenge the order of the prescribed authority by which he declared Niranjan Das as duly elected Pradhan of the Gram Panchayat. It is urged that such a plea could be raised by one of the other, candidates who was qualified and not by Om Prakash as he was himself disqualified to contest the election. It is true that Om Prakash being not a member of Scheduled Caste community was not qualified to be elected as Pradhan. Nevertheless he is a member of Gram Panchayat and is a voter and in his capacity as voter, he could challenge the decision of the prescribed authority declaring Niranjan Das as Pradhan of the Grain Panchayat. The order passed by the prescribed authority declaring Niranjan Das as Pradhan of the Gram Panchayat being illegal in view of decision of Supreme Court in D. K. Sharma v. Ram Saran Yadav (supra), the same has to be set aside.
8. In the result, the petition is partly allowed. That part of the order dated 24.6.1997 passed by the prescribed authority and also by the Addl. District Judge by which Niranjan Das was declared to be Pradhan of Gram Panchayat Charwa Barwa is quashed. The District
Panchayat Raj Officer, Ballia, is directed to hold a fresh election for the office of Pradhan of Gram Panchayat Charwa Barwa. Parties to bear their own cost.