JUDGMENT :

1. Heard Mr. Kartikeya Saran and Ms. Suchita Mehrotra, learned counsels for the petitioner, Ms. Archana Tyagi, learned Additional Chief Standing Counsel and Mr. C.B. Yadav, Senior Advocate assisted by Mr. Jaysingh Yadav, learned counsel for caveator.

2. The Writ petition is directed against the order dated 05.07.2023 passed by learned District Judge, Lalitpur in Election Petition No.01/23, under Section 35 of Uttar Pradesh Kshetra Panchayats (Election of Pramukhs and Up-Pramukhs and settlement of election disputes) Rules, 1994, (hereinafter referred to as ‘Rules of 1994’) whereby the ballot papers of the elections of Pramukh of Kshetra Panchayat, Constituency Talbehat, have been summoned and recounting of votes in the election held on 10.07.2021 has been ordered.

3. The petitioner and respondent no.1 were the candidates who contested the elections to the office of Pramukh Kshetra Panchayat Talbehat Constituency, District Lalitpur. Polling took place on 10.07.2021. Respondent no.1 Rajdeep Singh preferred an election petition on 01.09.2021 under Section 35 of Rules of 1994, stating therein that the election of Pramukh Kshetra Panchayat, Constituency Talbehat was notified on 05.07.2021. As per the notification, 08.07.2021 was the last date of filing nomination for the elections scheduled for 10.07.2021 and counting was to be carried on the same day. Counting took place on 10.07.2021. The petitioner was declared the winning candidate as he obtained 39 votes out of total voting of 83 votes whereas respondent no.1 secured 38 votes and 6 votes were declared invalid. Respondent no.1, the election-petitioner, has stated in his petition that the elections were held adopting corrupt practice, in a wrong and illegal manner, against the provisions as contemplated in Rules of 1994 as well as the relevant guidelines issued by the Election Commission.

4. The main ground taken in the election petition is regarding 6 valid votes cast in favour of the election-petitioner were declared as invalid, in order to give benefit to the winning candidate, that is, the petitioner in the present case.

5. After condoning the delay in filing the aforesaid election petition, regular number has been allotted.

6. The petitioner has filed written statement/objection on 25.04.2023 wherein he has denied the averments as taken by the petitioner clearly submitting that no illegality has been committed and the elections have been conducted in a fair manner, after following the procedure as provided under law and there is no illegality of procedural effect. He has also detailed about the criminal history of the respondent/election-petitioner. Thereafter, on 27.04.2022, written statement has been filed by District Election Officer stating therein that the impugned elections have been duly conducted after following the directions of Election Commission and rules and regulations of the Rules of 1994. After the aforesaid, the respondent/election-petitioner filed an application on 01.05.2023, thereafter, the learned Court framed seven issues for determination by order dated 01.05.2023 in the election petition.

7. The election-petitioner filed an interim application No.50C-2 on 11.05.2023 praying for summoning of ballot papers of the impugned election for the purpose of recounting of votes, to which, an objection was filed by petitioner stating therein that the application is not maintainable as the same has been moved making omnibus allegations, there being no evidence in support thereof. On 22.05.2023, the petitioner filed an application requesting the learned Court to first and foremost decide the issue no.5 which was with respect to the jurisdiction of the Court. On the aforesaid application, order dated 22.05.2023 was passed by the concerned Court observing that as there is no evidence or affidavit in support of the election petition, hence, ballot papers of the election cannot be summoned at this stage, it was further observed that the order will be passed on the