JUDGMENT I.M. Quddusi, J.
1. These are three connected appeals arising out of the same judgment and order dated 26.9.1996 passed by IVth Additional District Judge, Shahjahanpur in Jaydrath Singh v. Jivendra Kumar and others, Election Petition No. 1 of 1995. The learned court below while allowing the election petition declared opposite party No. 1 before him, namely, Jivendra Kumar to have become disqualified to be the Adhyaksha.
2. Brief facts of the case are that Jaydrath Singh and Vijai Pratap Singh, who are appellants in First Appeal No. 706 of 1996 filed, an election petition under Section 27 (2) of Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 (thereinafter referred to as "the Act") read with Rule 33 of Uttar Pradesh Zila Panchayats (Election of Adhyaksha and Up-Adhyaksha and Settlement of Election Disputes) Rules. 1994 (hereinafter described as the "Rules") against the election of Jivendra Kumar (appellant in First Appeal No. 428 of 1996) declaring him elected as Adhyaksha. Zila Panchayat, Shahjahanpur by the Returning Officer. They claimed themselves to be the electors and member of Zila Panchayat Shahjahanpur. The main averments made in the election petition were that in accordance with the notification issued by U. P. Government followed by a notification issued by the District Returning Officer/District Magistrate, the date for nomination was fixed 16.5.1995 and for polling and counting of votes 22.5.1995. The candidates who contested the election were Jivendra Kumar. Manvendra and Shrimati Gayetri Verma. The election was held as per schedule and counting of votes started at about 2.00 p.m. on the same date. There were 31 electors/voters in all and all the 31 voters polled their votes. During the first counting, the candidates got the following number of first preference votes :
I. Jivendra Kumar 10 II. Manvendra 14 III. Smt. Gayetri Verma 7 According to Rule 26 of the rules and para 6 of Schedule II, which gives the Formula for determination of results, the quota was fixed as 16 votes but as no candidate could achieve first preference votes equivalent to the quota prescribed, Shrimati Gayetri Verma who had secured lowest number of first preference votes (only 7 votes) was eliminated and the Returning Officer then was to consider second preference votes in favour of remaining two candidates. The second preference votes secured by the remaining two contesting candidates were as follows :
I. Jivendra Kumar 5 II. Manvendra 1 The remaining electors did not exercise their second preference vote. After elimination of Shrimati Gayetri Verma at the end of the second counting votes, the position of each candidate remained as under :
I. Jivendra Kumar 10 + 5 = 15 II. Manvendra 14 + 1 = 15 Thus both the candidates secured equal votes as a result of which the Returning Officer decided to draw a lottery and even on the basis of the lottery Jivendra Kumar was declared elected. However, protest and objection was raised by Manvendra. The following prayer was made in the election petition:
"(a) declare the election of Shri Jivendra Kumar, respondent No. 1 as null and void.
(b) declare that respondent No. 2 Shri Manvendra has been duly elected as Adhyaksha of Zila Panchayat. Shahjahanpur.
(c) issue any other order granting any other relief which Court may deem just and proper in the nature and circumstances of the case.
(d) award cost of the petition."
Written statements were filed by Manvendra, Jivendra Kumar and Shrimati Gayetri Verma separately. In the written statement filed by Jivendra Kumar, it was stated that the lottery was drawn after the written consent of respondent No. 2 and his Agent Sri Ram Autar Misra and the then M.L.A. and respondent Manvendra filed a writ petition in this Court which was dismissed on 6.2.1996, on the ground that he should first file an election petition. In the written statement, Manvendra has stated that the candidate who had secured the maximum number of first preference vote was entitled to be declared elected which had not been followed by the Returning Officer and thus the Returning Officer erred in law and, as such, the declaration given by the Returning Officer is contrary to law and is liable to be set aside. It was further contended that the written consent given by him to draw the lottery cannot be treated as estoppel as there cannot be any estoppel against the statutory provisions of law. In the written statement of Shrimati Gayetri Verma it was urged that the Returning Officer adopted recourse to draw lottery against the provisions of law which was opposed by her and other candidates but the Returning Officer did not pay any heed and declaration of Jivendra Kumar as elected was illegal and against the law.
3. It may be mentioned here that Manvendra had filed a Writ Petition No. 16012 of 1995 in this Court in which a declaration in favour of Jivendra Kumar was sought to be quashed which was dismissed on 16.2.1996 on the ground of maintainability in view of the availability of remedy, as provided, by filing election petition was open to the petitioner but he did not prefer to file an election petition. Jivendra Kumar also filed Writ Petition No. 28658 of 1996 in this Court by which the impugned order, which was under challenge, was passed by the IVth Additional District Judge. Shahjahanpur in the aforesaid election petition refusing to decide the question whether the election petition was maintainable as a preliminary issue (Issue No. 2). On this a decision was made on 6.9.1996 directing the learned Additional District Judge to decide the said question as a preliminary issue and if he holds that the election petition is not maintainable, then he will straightaway dismiss the election petition but if he holds that the election petition was maintainable, the writ petitioner will not be permitted to challenge the said order straightaway by way of appeal, revision or writ petition but the entire election petition will be decided within 15 days thereafter in accordance with law and if the petitioner is aggrieved by that final order in the election petition, it will be open to him to challenge the same while challenging the flnal order. The writ petition was disposed of finally.
4. In the present appeal filed by Jivendra Kumar, the ground regarding maintainability of election petition at the behest of the persons other than the contesting candidates is also under challenge.
5. In the election petition, Jivendra Kumar had urged that the petitioners being members of Zila Panchayat, Shahjahanpur had right to file election . petition under Section 27 (2) and Rule 33 as well as 48 and hence the election petition was maintainable. The Court below had framed three issues as follows :
1. Whether the counting of votes was done in accordance with law?
2. Whether the petitioner has a right to file election petition?
3. Reliefs?
Issue No. 2, as already stated above, was decided by the order dated 10.9.1996 holding that the election petition filed by the member of Zila Parishad as elector was maintainable. While allowing the election petition, the learned court below indicated in its Judgment that the order dated 10.9.96 deciding issue No. 2 shall form part of the final Judgment and order. The learned court below refused to grant relief as indicated in Rule 35 (b), i.e., refusal to declare Manvendra elected and declaring a casual vacancy in the office of Adhyaksha, Zila Panchayat, Shahjahanpur.
6. It is useful to mention that Jivendra Kumar filed the aforesaid first appeal in this Court aggrieved by declaration against him to the effect that he became disqualified to be Adhyaksha, and Manvendra filed appeal against non-declaring him as elected Adhyaksha of the Zila Parishad. The appellants Jaydrath and another also filed first appeal against the same decision.
7. I have heard the learned counsel for the appellants in all the three appeals Sri A. Kumar and Shri Ravi Kiran Jain, Senior Advocate assisted by Sri R. K. Awasthi appearing for the respondents at great length and have also perused the record.
8. Before proceeding further, it is necessary to peruse the provisions of Section 27 (2) of the Act and Rules 33 to 43. 48 and 51 of the Rules which are being quoted below for ready reference:
"27 (2). Notwithstanding any judgment, decree or order of any Court of tribunal to the contrary, where any person after his election as Pramukh, Up-Pramukh, Adhyaksha or Up-Adhyaksha is subsequently, at any time before the thirtieth day of April, 1969, elected or nominated to any of the offices mentioned in sub-clauses (i) to (iv) of clause (a) of sub-section (i) and continues immediately before the said date to hold such office he shall on the said date, cease to hold the office of Pramukh, Up-Pramukh, Adhyaksha or Upadhyaksha and a casual vacancy shall thereupon occur in the office of Pramukh, Up-Pramukh. Adhyaksha or Up-Adhyaksha, as the case may be, and the provisions of clauses (c) and (d) of the said subsection shall apply in relation to such cessation as they apply in relation to cessation under clause (b) of that sub-section, and any reference pending before the Judge under Section 27 or any suit pending in any civil court immediately before the said date in respect of any such question or dispute shall abate."
CHAPTER IV "Rule 33. Time and manner of presenting petitions.--(1) An election petition calling in question the election of an Adhyaksha or Up-Adhyaksha may be presented to the Judge at any lime within thirty days from the date of declaration of the result under Rule 13 or Rule 28, as the case may be.
(2) It shall be presented in person by the petitioner or if there are more than one petitioner, by any one or more of them.
34. Form, etc. of petition.--(I) An election petition shall specify the ground or grounds on which the election of the returned candidate is questioned and shall contain a summary of the circumstances alleged to justify the election being questioned on such grounds.
(2) The person whose election is questioned and where the petitioner claims that any other candidate shall be declared elected in the place of such person, every unsuccessful candidate shall be made a respondent to the petition.
35. Relief that may be claimed by the petitioner.-A petitioner may claim either of the following declarations :
(a) that the election of the returned candidate is void ;
(b) that the election of the returned candidate is void and that he himself or any other candidate has been duly elected.
36. Security.--(1) At the time of presenting an election petition the petitioner shall enclose with it a receipt showing that a sum of two hundred and fifty rupees has been deposited by him or on his behalf in a Government Treasury or in the State Bank of India as security for the costs of the petition.
(2) There shall be paid on an election petition the Court fees prescribed in the Court Fees Act, 1870 or if no such Court fees is prescribed in that Act, a fee of Rs. 125 in Court fees stamps.
37. Recrimination when claimed.--When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election.
40. Orders of the Judge--(1) If the Judge after making such inquiry as he deems fit finds in respect of any person whose election is called in question by a petition, that his election was valid, he shall dismiss the petition as against such person and award costs at his discretion.
(2) If the Judge 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 and in either case may award costs at his discretion.
41. Power of the Judge.--(1) If the petition is found to be frivolous the Judge may direct that the security or any part thereof shall be forfeited to the State Government.
(2) An order for costs passed by the Judge shall be executed by him on , an application made in that behalf in the same manner and in accordance with the same procedure as if it were a decree for the payment of money made by him in a suit.
42. Ground for which a candidate other than the returned candidate may be declared to have been elected.--If any person who has lodged an election petition has in addition to calling in question the election of the returned candidate claimed a declaration that he himself or any other candidate received a majority of the valid votes, the Judge shall after declaring the election of the returned candidate to be void, declare the petitioner or such other candidate, as the case may be, to have been duly elected :
Provided that the petitioner or such other candidate shall not be declared to be duly elected if it is proved that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election.
43. Procedure in case of equality of votes.--(1) If during the trial of an election petition it appears that there is an equality of votes between candidates at the election and that one of them is to be eliminated then :
(a) any decision, made by the Returning Officer under the provision of these rules, shall, insofar as it determines the, question between those candidates, be effective also for the purposes of petition, and
(b) so far as the question is not determined by such a decision, the Judge shall decide between them in accordance with the provisions of the instructions in Schedule II to these rules,"
CHAPTER V
48. Manner of raising disputes under clause (c) of sub-section (2) of Section 27.--(1) If a dispute arises as to whether a person has become disqualified, to be Adhyaksha or Up-Adhyaksha for the purposes of Section 19, the matter shall be referred by means of a written petition by any person whose name is registered as an elector in the electoral roll for a territorial constituency of the Zila Panchayat, to the Judge at any time during the currency of the term of the said Adhyaksha or Up-Adhyaksha, as the case may be.
51. Orders of the Judge.--If the Judge finds that the person, against whom the petition has been raised under Rule 48 has become disqualified to be Adhyaksha or Up-Adhyaksha, as the case may be, for purposes of Section 19, he shall declare a casual vacancy to have occurred in the said office."
9. First of all, let us see whether an election petition filed by Jaydrath and Vijay Pratap Singh, who are electors to elect Adhyaksha, Zila Panchayat, Shahjahanpur was maintainable as indicated in Rule 48 or not. At the very outset, the provisions of Article 243K(4) and 243C(b) of the Constitution are to be kept in mind, which are as under :
"243K. (4) Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Panchayats."
"No election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State."
Shri Ravi Kiran Jain, learned counsel has argued that the Legislature does not provide anything about such an election, the person by whom the election petition may be presented and the manner of presentation of the election petition and the subordinate legislation is not permissible in view of Article 243-O(b) of the Constitution. He has also pointed out the provisions of Article 243K(4), according to which subject to the provisions of the Constitution the Legislature of a State may by law make provision with respect to all matters relating to or in connection with an election to the Panchayat. He has contended that if the Legislature of a State fails to make a law providing for any authority and the manner in which the election to the office of Zila Panchayat can be challenged, there will be no way to challenge such an election. In the State of Uttar Pradesh, Act No. IX of 1994 was enacted to bring the law relating to the Panchayats in the tune with the Seventy Third Amendment of the Constitution, whereby Section 264B has been inserted to conform the requirement of Article 243-O(b) of the Constitution. The intention envisaged in the said Article of the Constitution was that the Legislature should make a law but in Uttar Pradesh, the appropriate Legislature has left it open to subordinate legislative authority, namely, the State Government to frame rules which have been enforced in the name of the Governor in exercise of the powers under Section 237 of the U. P. Kshettra Samiti and Zila Panchayat Adhiniyam, read with clause (c) of subsection (2) of Section 27 and Section 264 (b) of the said Adhiniyam, which is not in the spirit of the Constitution and not a law made by the Legislature of a State as provided under Article 243K(4) and 243-O(b) of the Constitution. In view of this the election petition presented by the Member Zila Panchayat (electors) is not maintainable and the rules in [his regard are liable to be ignored.
10. His further contention is that calling in question an election and a dispute relating to an election are two different things. Once the elections are held and declarations are made in favour of the returned candidate, rule-making power under Section 264 would exhaust itself. Rules 33 and 34 do not empower an elector to prefer an election petition. Under Rule 48, disqualification of an Adhyaksha can be challenged by an elector whereas under Rule 33, challenge can be only by a person who had been a candidate at the election. Since the election petition was not filed by any of the candidates but an elector and the subject-matter he was calling in question was the election of an Adhyaksha and not to any of the disqualifications incurred by Adhyaksha. Rule 48 is the only rule which entitles an elector to raise a dispute and that is confined to incurring of disqualification under Section 227 (2) read with Section 19 of the Act. Since the dispute in question was not as envisaged by Rule 48, election petition itself was not maintainable at the instance of an elector. In reply, Sri A. Kumar has contended that the Slate is bound to legislate a legislation, regarding the conduct of an election of Panchayat including the provisions regarding the challenge of an election in view of the provisions of Article 243-O(b) of the Constitution and, as such, the State Legislature has passed U. P. Act No. 9 of 1994 amending the provisions of Uttar Pradesh Kshettra Samiti and Zila Panchayats Rules. 1991. Section 264 (b) of the said Act provides for substantial provision for challenge of an election in the manner prescribed and the manner prescribed is provided in the form of the Rules known as U. P. Zila Panchayat (Election of Adhyaksha and Up-Adhyaksha and Settlement of Election Disputes) Rule, 1994, which have been framed in accordance with powers under Section 264B of Kshettra Panchayats and Zila Panchayats Adniniyam, as amended by U. P. Act No. 9 of 1994 and the provisions of Section 27 having nothing to do with the challenge of an election. His further contention is that Rule 33 provides for filing of the election petition calling in question the election of Adhyaksha and Up-Adhyaksha and Rule 47 provides for an appeal. The scheme of the Act provides that there are two different forums (i) calling in question of an election which is provided by Section 264 (h) of the Act and Rules 43, 44 and 45 referred to above whereas the provisions of Section 27 read with Rule 48 provides for a different situation when a person incurs a disqualification and whether such person has incurred disqualification or not is liable to be adjudicated upon under the provisions of Section 27 of the Act read with Rule 48 of the Rules and the election petition in the aforesaid circumstances cannot be said to be not maintainable as stated by the other side. He has further submitted that the case of Jyoti Basu and others v. Debi Ghoshal, AIR 1982 SC 1983, where it has been held : that no one may be joined as a party to an election petition otherwise than as provided by Sections 82 and 86 (4) of the Representation of the People Act" and the case of Gujarat University v. Shri N. U. Rajguru and others, AIR 1988 SC 66, where it has been held that it is well-settled that where a statute provides for election to an office, or an authority or institution and if it further provides a machinery or forum for determination of dispute arising out of election, the aggrieved person should pursue his remedy before the forum provided by the Statute" cited by the learned counsel for the other side are not applicable to the facts of the present case.
11. A comparative study of the provisions of Articles 243K(4) and 243-O(b) of the Constitution would show that in the former, the Legislature of a State has been authorised to make law providing with respect to all matters relating to or in connection with election to the Panchayats while the latter provision provides that the elections shall not be called in question except by an election petition presented to such authority and in such manner as is provided by or under any law made by the Legislature of a State which shows that the former relates to the provisions with regard to all matters relating to or in connection with election to the Panchayats and the latter provides the manner of presentation of election petition which is a post-election matter. In view of this, the intention of the Constitution is that the matters concerning the elections are to be laid down by a law made by the State Legislature but the manner of presentation of election petition, i.e., the post-election matters may be made either by the Legislature or under the law made by the Legislature and, as such, in post-election matters the subordinate legislation is permissible.
12. In the matter of Dr. Indramani Pyarelal Gupta and others v. W. R. Natu and others, AIR 1963 SC 274, the Hon'ble Supreme Court has held as under :
"By an Act would mean by a provision directly enacted in the statute in question and which is gatherable from its express language or by necessary implication therefrom. The words "under the Act" would in that context, signify what is not directly to be found in the statute itself, but is conferred or imposed by virtue of powers enabling this to be done, in other words, bye-laws made by a subordinate law-making authority, which is empowered to do so by the parent Act. The distinction is thus between what is directly done by the enactment and what is done indirectly by rule making authorities which are vested with powers in that behalf by the Act. A power conferred by a bye-law is not one conferred "by the Act", for in the context, the expression "conferred by the Act" would mean "conferred expressly or by necessary implication by the Act itself." A bye-law framed under Section 11 or Section 12 could not fall within the phraseology" as may be prescribed", for the expression "prescribed" has been defined to mean "by rules under the Act", i.e., those framed under Section 28 and a bye-law is certainly not within that description. But having regard to the provisions of Sections 11 (1), (4) and 12 (2) (4) it would not be possible to contend that notwithstanding that the bye-laws are rules made by an Association under Section 11 or compulsorily made by the Central Government for the Association as its bye-laws under Section 12, they are not in either case subordinate legislation under Section 11 or Section 12 as the case may be, of the Act. They would, therefore, squarely fall within the words "under the Act" in Section 4 (f)."
Following the decision of Hon'ble Supreme Court in the case of Dr. Indramani Pyarelal Gupta and others (supra), a Division Bench of this Court in the case of M/s. U. P. Pesticides and Fertilisers v. Fertilisers Registering Authority/S Agri. Officer, Muzqffanagar, 1997 (30) ALR has held as under :
"The meanings of the words "By" or "Under the Act" are well-known. When anything is required to be done by "an Act", it means by a provision contained in the Act. But if a thing is required to, be done "under the Act" it means by a provision contained in the Act. But if a thing is required to be done "under the Act" it would cover an action under the Subordinate Legislation enacted in exercise of the powers conferred by the Act."
13. In the instant case, the Legislature has made he law, namely, U. P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961. Section 237 (1) of the aforesaid Act provides that the State Government may by notification in the official Gazette make "rules consistent with that Act in respect of any matters for which the power of making rules is expressly or by implication is conferred by that Act and may also make rules which are otherwise requisite for carrying out the purposes of this Act. The provision is quoted below for ready reference :
"237 (1) Power to State Government to make Rules.-(1) The State Government may by notification in the official Gazette make rules consistent with this Act in respect of any matters for which the power of making rules is expressly or by implication conferred by this Act, and may also make rules which are otherwise requisite for carrying out the purposes of this Act."
Beside the above provision. Section 27 (2) of the Aforesaid Act provides that if a dispute arises as to whether a person has been lawfully chosen a member of a Zila Panchayat under Section 18, or has ceased to remain eligible for being chosen a member of the Zila Panchayat for the purposes of Section 20, or has become disqualified to be Adhyaksha or Up-Adhyaksha for the purposes of Section 19, the dispute shall be referred in the manner prescribed to the Judge whose decision shall be final and binding.
14. The above quoted provisions show that the Legislature has permitted subordinate legislation to provide the manner for presentation of an election petition and the State Government framed rules accordingly known as U. P. Zila Panchayat (Election of Adhyaksha and Up-Adhyaksha and Settlement of Election Disputes) Rules, 1994. These rules are no doubt under the law made by the State Legislature and they are consonant with the provisions of Article 243-O(b) of the Constitution.
15. The ground taken in the election petition was that the Returning Officer committed illegality in drawing lottery and declaring Jeevendra Kumar as elected against the provisions of the Rules, in this way, they have challenged the election of Jeevendra Kumar for pronouncement as ineligible as a winner because of the infringement of rule, as draw of lottery was against the rules according to the appellants Jaydrath and Jeevendra Kumar. However, in the prayer it has been prayed that the Court may declare the election of Jeevendra Kumar as null and void instead of seeking a relief of declaration that Jeevendra Kumar has become disqualified. This relief has not been sought because the language that 'if a dispute arises as to whether a person has become disqualified to be Adhyaksha .... as indicated in Rule 48, which, in fact, is a stage subsequent to the stage of election and not at the time of election as the word" has become" denotes that subsequent to the election of Adhyaksha if the person in the post of Adhyaksha has become disqualified, an elector can file an election petition. In the instant matter, it is not the case of either party that subsequent to the election Jeevendra Kumar has become disqualified but the case of Jaydrath, etc. is that the lottery draw was illegal and the declaration of Jeevendra Kumar is Adhyaksha was illegal, meaning thereby that he was not qualified to be declared as elected Adhyakshya due to the reason that he received lesser number of votes of first preference. Such a right has not been given to an elector to challenge the election of an Adhyakshya. But the right has been given only at the stage when the person in the office of Adhyakshya becomes disqualified as Adhyakshya. A person who under the law is not entitled to hold the office of Adhyakshya cannot certainly come within the scope of subsequent disqualification. Hence at the very outset, the election petition by an elector challenging the election of Jeevendra Kumar as Adhyaksha of the Zila Panchayat was not maintainable.
16. The difference between Section 27 (2) (a), 27 (2) (b) and 27 (2) (c) as well as Rule 48 is that in the former two sub-sections, the dispute of the nature of un-lawfully chosen a member of a Zila Panchayat under Section 18, or has ceased to remain eligible for being chosen a member of the Zila Panchayat for the purposes of Section 20, can be referred to the Judge. While in sub-section (2) (c) and Rule 48, the words "has become disqualified to be Adhyaksha or Up-Adhyaksha for the purposes of Section 19" have been indicated, which clearly categorised the dispute separate and Rule 48 only permits an elector whose name is registered in the electoral roll for that territorial constituency of Zila Parishad, in Rule 48, the language further specifies the fact that the rule relates to a person holding the office of Adhyakshya validly which is clear from the words "....at any time during the currency of the term of the said Adhyaksha or Up-Adhyaksha....." while in an election petition challenging the election of Adhyakshya, no question of consideration of disqualification during the currency of term of Adhyaksha arises as in that case, disqualification would be termed as prior to the starting of term of Adhyaksha and not the currency of the term of Adhyaksha.
17. Instantaneously coming to Rule 33 of Chapter IV of the Rules, we would find that it has been clearly indicated therein that an election petition calling in question the election of an Adhyakshya by the elector can be presented to the Judge at any time within thirty days from the date of declaration of the result under Rule 13 or Rule 28, as the case may be. Rule 34 prescribes the form, etc. of the petition which shall specify the ground or grounds. Rule 35 gives the scope of claiming relief according to which either of the two reliefs may be claimed, i.e., the election of the returned candidate is void or that the election of the returned candidate is void and that he himself or any other candidate has been duly elected. The intention of these rules is that the petitioner may get a declaration in his own favour or for any other candidate meaning thereby that it is necessary to claim such relief by way of election petition that the petitioner himself should be a candidate, otherwise how can he get himself declared as elected as provided in Rule 35 (2), if he is not a candidate. The words "other candidates" denotes that he himself (election petitioner) should be a candidate who can get a declaration that any other candidate has been duly elected, may be the reason that any other candidate might be above him in order of number of votes in descending order. Besides this in Chapter IV, the limitation to file an election petition has been provided as 30 days under Rule 33 while in Chapter V, Rule 48 provides the limitation for referring the dispute as to whether a person has become disqualified to be Adhyaksha till the end of the terra of the Adhyaksha. Rule 48 has also not been included in Chapter IV but has been kept in Chapter V of the Rules which shows that the provisions of Chapter V have been made independently. Thus the reading of these rules would show that Chapter IV is meant for a candidate while Chapter V is meant for an elector only.
18. This case was listed for delivery of Judgment on 4.8.1997 but before the judgment could be delivered Sri S. K. Garg, learned counsel filed an application along with a written note of arguments with a prayer that the written arguments be also considered. The application was filed on behalf of the present Adhyaksha. Zila Panchayat, Shahjahanpur. On that application an opportunity of further hearing was provided to the parties concerned. All the parties to the first appeals objected that neither the present Adhyaksha is a party to the first appeal nor he has any locus standi. Any how no new thing has been pointed out in the written arguments by Sri Garg. Shri Garg has supported the judgment of the Court below. Upadhyaksha. Zila Panchayat, Shahjahanpur is, in fact, in the stop gap arrangement, functioning as Adhyaksha and naturally his interest would be to continue as such, as long as possible. In view of this fact, the application submitted by Sri S. K. Garg at the belated stage is an attempt to delay the matter by the person concerned so that the dispute may remain unsettled and the person concerned may continue in office.
19. In view of the above discussion, the decision of the trial court contrary to the above while deciding issue No. 2 as preliminary issue holding that the election petition by the elector challenging the election as provided in Chapter IV was maintainable is not sustainable.
20. Since this Court has held that the election petition challenging the election of Adhyaksha of Zila Panchayat filed by an elector, who was not a candidate, was not maintainable, the subsequent issue decided by the Court below need not be considered in this appeal.
21. In the result, the appeal filed by Jeevendra Kumar, i.e., First Appeal No. 428 of 1996 is allowed and the rest two appeals, viz., First Appeal No. 706 of 1996, Jaydrath Singh v. Jeevendra Kumar and others and First Appeal No. 429 of 1996 Manvendra Singh v. Jeevendra Kumar and others are dismissed. The judgment and order under appeal dated 26.9.1996 along with the order dated 10.9.1996 deciding issue No. 2, which is a part of main judgment and order are set aside. The election petition is also dismissed. There shall be no orders as to costs.