- (1.)PANKAJ Mithal, J. Under challenge is the judgment and order of the District Judge dated 30. 7. 2007 passed in Election Petition No. 3/70 of 2006, Mohd. Saud v. Manoj Kumar and another, by which the election petition was allowed, the election of Manoj Kumar as Pramukh, Kshetriya Panchayat Mooratganj, district Kaushambi was set aside and Mohd. Saud was declared elected in his place.
(2.)THE appellant Manoj Kumar and the respondent No. 1 Mohd. Saud both contested elections for the post of Pramukh, Kshetriya Panchayat Mooratganj as Other Backward Class (hereinafter in short OBC) candidates. THE elections to the said post were held on 27. 2. 2007. All the 79 members of the Kshetriya Panchayat voted. Counting was done on the same evening. Three (3) ballot papers were rejected as invalid. Thus only 76 valid ballot papers remained for counting. On counting both the candidates secured 38 votes each and as such there was a tie. Accordingly, a lottery was drawn. On the basis of lottery respondent No. 1 Mohd. Saud was allegedly declared winner. However, the Assistant Returning Officer (in short ARO) with his report submitted the entire ballot papers to the Returning Officer/district Magistrate (in short RO/dm) at the Vikas Bhawan Manjhanpur district Kaushambi. THE RO/dm undertook recounting and found that out of the 38 votes polled by the respondent No. 1 Mohd. Saud two were invalid but were counted wrongly in his favour. On recounting therefore, the appellant Manoj Kumar was found to have secured 38 votes whereas respondent No. 1 Mohd. Saud 36 votes. Thus with the consent of the observer appointed by the State Election Commission the appellant Manoj Kumar was finally declared as elected.
In the above scenario the respondent No. 1 Mohd. Saud who was first declared elected on tie by draw of lottery and subsequently having lost on recounting, preferred an election petition under Rule 35 of the U. P. Kshetriya Panchayat (Election of Pramukh and up Pramukh and Settlement of Election Disputes) Rules, 1994 (hereinafter referred to in short Rules ).

In the election petition, the respondent No. 1 Mohd. Saud apart from arraying appellant Manoj Kumar, as defendant No. 1 also arrayed the RO/dm as the defendant No. 2. Both the defendants filed separate written statements. The respondent No. 1 Mohd. Saud in the election petition categorically pleaded that the ARO acting for and on behalf of RO/dm after counting and determining the result had declared him elected and therefore the RO/dm was left with no jurisdiction to make a recount and to declare the appellant Manoj Kumar as elected. The appellant Manoj Kumar by his written statement pleaded that he was rightly declared elected by the RO/dm in accordance with the rules inasmuch as he had secured 38 votes while the respondent No. 1 Mohd. Saud had only polled 36 votes. The declaration was followed by a certificate issued by the ARO dated 27. 2. 2006 to the above effect. The respondent No. 2 the RO/dm in his written statement admitted that 79 votes were polled out of which 3 ballot papers were rejected as invalid. The ARO after counting proceeded to determine the result in accordance with Clause 4 of Schedule II of the Rules, 1994 on the basis of lottery as both the candidates have polled equal number of first preference votes i. e. , 38 each, and the respondent No. 1 Mohd. Saud was declared elected. He however stated that the ARO was not the competent person to declare the result. He could not have declared the result even otherwise in view of the instructions of the State Election Commission contained in the letter dated 25. 2. 2006 which provided for taking consent of the observer appointed by the Election Commission before declaring the result. Therefore when the ARO presented the papers along with his report to him, he recounted the ballot papers arid with the concurrence of the observer declared appellant Manoj Kumar as having won by margin of two votes over Mohd. Saud respondent No. 1. In the election petition no oral evidence was adduced by any of the parties. The Court below on the pleadings of the parties framed as many as 8 issues as under: (1) Whether the return of Shri Manoj Kumar, respondent No. 1 dated 27. 2. 2006 as Kshetra Panchayat Adhyaksha, Mooratganj, District-Kaushambi is void as pleaded in para 15 of the Election Petition? (2) Whether the petition is bad for non-joinder of necessary parties for not impleading A. R. O. , and State of Uttar Pradesh as parties? (3) Whether A. R. O. , is competent to exercise the powers of R. O. , when R. O. , available in the District? (4) Whether R. O. , has power to recount the ballot papers? (5) Whether R. O. , respondent No. 2 is empowered to peruse, vary, examine or recount the ballot papers after the counting was over on 27. 2. 2006 and Form VIII of Rule 29 Kshetra Panchayat Samiti Niyamawali had already been fulfilled as pleaded in paras 12, 21, 23 and 29 of the written statement filed by respondent No. 27? (6) whether the copies of the different News papers filed in the petition are admissible in evidence? (7) Whether on account of return of Manoj Kumar as Panchayat Adhyaksha Mooratganj, District- Kaushambi being void petitioner Mohd. Saud himself is entitled to be declared legally elected Kshetra Panchayat Adhyaksha, Mooratganj, District-Kaushambi?/ (8) Whether the petitioner is entitled to any other relief?

(3.)THE Court decided issues No. 1, 3, 4 and 5 together and held that the ARO was a competent person to declare the election result for and on behalf of the RO/dm. Once he has declared the election result in accordance with Rule 29 and has filled up Form VIII, the RO/dm has become functus officio so as to order a recount or to recount the ballot papers and to declare the other candidate as having won. THE result declared by the ARO does not get affected by the alleged circular dated 25. 2. 2006 issued by the Additional Commissioner State Election Commission U. P. , Lucknow.
Thus the election petition was allowed and the election of the appellant Manoj Kumar was set aside and the respondent No. 1 Mohd. Saud was declared elected as Pramukh, Kshetriya Panchayat Mooratganj, District Kaushambi. Aggrieved by the aforesaid judgment and order of the Court below, the appellant Manoj Kumar has preferred this first appeal.