JUDGMENT Aloke Chakrabarti, J.
1. Challenge herein is to the judgment and order dated 3.1.1998 at Annexurc-13 to the writ petition passed by the lllrd Additional District Judge, Allahabad allowing the revision filed by the respondent No. 2 Sri Chandra Bali Singh under Section 12C (6] of U. P. Panchayat Raj Act.
2. The relevant facts stated in the writ petition are that in the month of April, 1995, election of Gram Panchayat of Ugrasenpur alias Bibipur, Pargana Mah, Block Pratappur. Tahsil Handia. district Allahabad was held wherein seven candidates including the petitioner and the respondent No. 2 contested for the office of Pradhan. The petitioner was allotted symbol Tractor' and the respondent No. 2 was allotted symbol 'Watch'.
3. Election was held on 12.4.1995 and counting took place on 18/19.4.1995 and the result was declared on 19.4.1995 declaring the respondent No. 2 Shri Chandra Bali Singh as elected Pradhan of the said Gram Panchayat. As there was bungling at the time of counting regarding mixing up of ballot-papers, the petitioner filed an election petition under Section 12C of the said Act contending that the returning officer and Assistant Returning Officer who conducted the election were relatives of respondent No. 2 and committed bungling at the time of counting. The election petition was contested by the respondent No. 2 and he filed written statement. The petitioner also filed application for recounting of ballot-papers. Statements of the petitioner and his counting agents had been recorded. The statement of the respondent No. 2 had also been recorded. The election Tribunal by his order dated 2.11.1996 directed recounting of ballot-papers. Pursuant thereto, recounting was held on 30.11.1996 and as the petitioner was found to have secured highest votes, he was declared as elected Pradhan.
4. The respondent No. 2 filed a revision before the respondent No. 1 under Section 12C (6) of the said Act challenging the said order dated 30.11.1996 which was contested by the petitioner and ultimately, by order dated 3.1.1998. the respondent No. 1 allowed the said revision. Challenging the same, the present writ petition was filed,
5. The petitioner filed a supplementary affidavit disclosing that the document at Annexure-3 to the writ petition was filed by mistake and instead of the actual application, inadvertently earlier application filed before the Block Development Officer was filed. True copy of the actual application has been filed with the supplementary affidavit. The respondent No. 2 Chandra Bali Singh filed counter-affidavit and the supplementary counter-affidavit denying the contentions of the petitioner. Petitioner filed rejoinder-affidavit and a supplementary rejoinder-affidavit.
6. The petitioner has filed affidavit of service showing that notices had been issued to respondent Nos. 3 to 6 and the respondent Nos. 4, 5 and 6 have put in their appearance through Sri Govind Krishna. The respondent No. 3 though has been served with the notice but no appearance has been put in. The respondent No. 7 has refused to accept the notice in presence of the witnesses.
7. Admittedly, the said respondent Nos. 3 to 7 did not file any election petition nor any revision against the order of the election Tribunal.
8. Heard Sri R. N. Singh assisted by Sri V. K. Singh and Sri I. N. Singh, learned counsel for the petitioner and Sri Sudhakar Pandey. learned counsel for the respondent No. 2. Learned standing counsel representing formal party did not file any counter-affidavit.
9. The contentions of the learned counsel for the petitioner as argued by his learned counsel are that revision was filed by the respondent No. 2 only against the order dated 30.11.1996 which is a consequential order and the main order directing recounting dated 2.11.1996 at Annexure-9 to the writ petition had not been ever challenged but the respondent No. 1 while deciding the revision considered the said main order dated 2.11.1996 on merit and came to his finding and this has vitiated the revlslonal order. The further contention of the petitioner is that while considering the said order dated 2.11.1996. the respondent No. 1 further acted illegally in overlooking the fact that the election Tribunal decided the election petition after recording evidence and upon considering entire records including such evidence. Therefore, it is stated that the order of the election Tribunal was not on the sole ground of consent of parties and as such was not liable to be interfered with the revision.
10. The second contention of the learned counsel for the petitioner is that while considering the order dated 30.11.1996, the respondent No. 1 transgressed his jurisdiction as he reassessed evidence sitting in revision. The further contention of the petitioner in this regard is that the respondent No. 1 failed to appreciate the settled law correctly although he has referred to various decisions settling the law. Contention has been made that the Full Bench of this Court in the case of Ram Adhar Singh v. District Judge, Ghazipur and others. 1985 All LJ 615, made the legal position clear which could not be appreciated by the respondent No. 1.
11. The learned counsel for the respondent No. 2 contended that the order dated 2.11.1996 passed by the election Tribunal merged in the final order passed on 30.11.1996 disposing of the election petition and, therefore. the revision petition was filed rightly and the respondent No. 1 was entitled to consider the merit of the order dated 2.11.1996 also. It is further coniended-that the order dated 2.11.1996 was passed solely on the ground of consent of parties although law has been settled contrary holding that only by consent of parties election petition cannot be decided as by consent jurisdiction is not conferred.
12. With regard to the order dated 30.11.1996, .it has been contended that the election Tribunal decided the election petition contrary to the evidence on record and. therefore, the revising court did not commit a mistake in assessing the aforesaid fact as the impugned order is without jurisdiction.
13. Further contention has been made on behalf of the respondent No. 2 that the petitioner has not produced genuine documents and Annexure-3 to the writ petition Indicates that no scrutiny was sought for and the prayer was for recounting of votes. Therefore, the scrutiny held on 30.11.1996 as appears from Anhexure-11 to the writ petition was contrary to the order passed on 2.11.1996 resulting in vitiating the further order dated 30.11.1996 at Annexure-10 to the writ petition as was passed on such scrutiny.
14. The learned counsel for the respondent No. 2 also referred to law decided in the case of S. G. Estates and Properties Ltd. v. Tehri Steels Ltd.. Tehri, 1997 (88) RD 474 and P. K. K. Shamsudeen v. K. A. M. Mappillai Mohindeen and others. (1989) 1 SCC 526.
15. After considering the aforesaid contentions of the parties and perusing the materials on record. I find that the order dated 2.11.1996 (Annexure-9 to the writ petition) was passed in the proceeding under Section 12C directing recounting of votes. In terms of such decision, recounting took place on 30.11.1996 and order was passed declaring the petitioner as elected. The revision petition filed under Section 12C (6) has been annexed as Annexure-12 to the writ petition which shows that the same was filed only challenging the order dated 30.11.1996. The contention of the respondent No. 2 is that the order dated 2.11.1996 merged in the order dated 30.11,1996 and, therefore, no separate challenge was required. It is stated that even in an appeal against a final decree passed in a suit, earlier orders of interlocutory nature can be challenged and applying that analogy, the said revision was to be treated as one challenging the order dated 2.11.1996 also. This contention of the respondent No. 2 does not appear to be correct. The main direction for recounting was passed by order dated 2.11.1996. Recounting took place in terms of the said order and, therefore, it cannot be said that the order dated 2.11.1996 merged in the order dated 30.11.1996. Moreover, even in an appeal against a decree in a suit, challenge is to be made to any particular interlocutory order and in such an appeal against a decree, interlocutory orders not challenged specifically are not considered on merit. Therefore, in the present revision when it was filed specifically against the order dated 30.11.1996 and even the grounds do not indicate that the earlier order was under challenge, there was no occasion for the respondent No. 1 to consider the earlier order dated 2.11,1996 on merit.
16. With regard to the contention that the order dated 2.11.1996 could be held to be bad in law in revision passed solely on the ground of consent of parties placing reliance on the decision in the case of Kali Prasad v. Prescribed Authority. (S.D.O), Pratapgarh and another, 1980 All LJ 378, I find that subsection (8) of Section 12C also limited the power of the revising authority. Only the order which was challenged in the revision petition under sub-section (6) could be confirmed or varied or rescinded or the matter could be remanded to the Prescribed Authority for rehearing. Authority in the revision petition could not pass order in respect of order dated 2.11.1996 which was not challenged in the revision petition filed under sub-section (6). The contention of the learned counsel for the respondent No. 2 that once the revision is filed, the authority is having the entire matter before him as decided in the case of S. G. Estates Properties Ltd. (supra). Is not acceptable as the said case was decided in a revision proceeding considering the provisions of Section 115 of the Code.. The difference of language of the provisions of Section 115 of the Code and sub-sections (6) and (8) of Section 12C make it clear that the respondent No. 1 was not having the authority equally wide as a Court of law is having under Section 115 of the Code.
17. After hearing the contention of the respondent No. 2 and the reply given by the learned counsel for the petitioner. 1 find that the aforesaid case considered facts wherein even statements of witnesses were not recorded and solely on consent of parties power was exercised for recounting. In that background, it has been held by this Court that such an order for recounting was bad. A perusal of the said order dated 2.11.1996 shows that the same was passed after taking into consideration the respective cases of the parties. Admittedly contesting parties filed their pleadings and the statements of the witnesses were also recorded. The said order indicates that records were considered and the contention of the petitioner was also considered. Therefore, from the said order, it appears that the same was not passed solely on the ground of consent and for passing the said order, not only materials available were perused by the authority but were taken note of in the order itself. In the aforesaid circumstances. I am of the opinion that the said order does not suffer from any illegality as contended by the respondent No. 2.
18. With regard to the order dated 30.1.1.1996. It appears that the same was passed following the order dated 2.11.1996 and the same could not be challenged independently. It is contended by the respondent No. 2 that the prayer of the petitioner in the election petition was for only recounting and the Annexure-11 shows that scrutiny also took place and thus it went beyond the order dated 2.11.1996.
19. It appears that the petitioner annexed as Annexure-3 to the writ petition a copy of application filed before the Block Development Officer and the same was not the actual election petition. The respondent No. 2 has contended that documents and records have been manipulated and wrong document was filed as Annexure-3. The petitioner has filed a supplementary affidavit annexing therein true copy of the actual election petition and has contended in the supplementary affidavit that by mistake, a wrong document was annexed at Annexure-3 to the writ petition. After considering the respective contentions of the parties, I do not find that the petitioner could benefit in any manner by producing the said document as Annexure-3. Original election petition and the application filed in the said proceeding filed along with the supplementary affidavit make it clear that the petitioner by mistake filed a wrong document as Annexure to the writ petition and thereby he did not get any benefit as contended by the respondent No. 2.
20. The actual election petition and the application filed therein indicate the nature of complaint made by the petitioner in the election petition and the prayer of the said petition must be read along with and in the background of the facts stated in the petition. The specific complaint of bungling of various bundles of votes was made in the election petition. Therefore, when recounting was directed by order dated 2.11.1996 allowing the said election petition, recounting had been done in the said manner as has been indicated from the order at Annexure-11 to the writ petition. I am of the opinion that no irregularity has been shown to have been committed.
21. With regard to the power of the revising authority under sub-section (6) of Section 12C, it appears that scope of revision was limited to Ihc grounds contained in clauses (a), (b) and (c) and those are in similar language as the grounds of revision contained in Section 115 of the Civil Procedure Code. Therefore, merely on facts, the revising authority was not having jurisdiction to interfere unless any of the said grounds was available.
22. In view of the aforesaid findings, I am of the opinion that the respondent No. 1 could not allow the revision petition on the materials available on record under the provisions of the law.
23. The writ petition is, therefore, allowed and the impugned order dated 3.1.1998 at Annexure-13 to the writ petition is hereby quashed. There will be no order as to costs.