JUDGMENT Hon’ble Surya Prakash Kesarwani, J.—Heard Sri N.K. Pandey, learned counsel for the petitioner and Sri Amit Krishna, learned counsel for respondent No. 1. 2. By this writ petition, the petitioner has prayed for the following reliefs : “(i) issue a writ, order or direction in the nature of certiorari calling for the record of the case and quashing the order dated 24.12.2014 as well as ex parte order dated 20.3.2014 passed by Additional District Judge (Court No. 10), Bareilly/Election Tribunal in Election Petition No. 41 of 2010, (Khalid Khan v. Sangeeta and others) and dismissed the election Petition No. 41 of 2010 ; (ii) issue a writ, order or direction in the nature of mandamus directing the respondents not to give effect to ex parte order dated 20.3.2014 and 24.12.2014 passed by Election Tribunal and further to restrain Shri Khalid Khan, respondent No. 1 from working as member of Zila Panchayat from Ward No. 25 of Zila Panchayat, Bareilly and further to direct the respondents to ascertain the result of election on the basis of the result of recounting.” 3. Briefly stated the facts of the present case are that petitioner as well as the respondent No. 1 were contesting candidates amongst others from Ward No. 25 of Zila Panchayat in the election of the members of Zila Panchayat, Bareilly. Polling was held on 17.10.2010. Result was declared on 30.10.2010 in which the petitioner was declared successful. She secured 4,976 votes, while the respondent No. 1 secured 4,923 votes. 4. Aggrieved with the election of the petitioner, respondent No. 1 filed Civil Misc. Writ Petition No. 71779 of 2010, which was dismissed by order dated 10.12.2010 on the ground of alternative remedy. Thereafter, the respondent No. 1 filed Election Petition on 24.12.2010, under Section 27 of The Uttar Pradesh Kshetra Panchayats and Zila Panchayats Adhiniyam 1961 alongwith a Delay Condonation Application under Section 5 of the Limitation Act. 5. Learned counsel for the petitioner submits that the petitioner was elected as member of Zila Panchayat, Bareilly in the election held on 17.10.2010 and the result was declared on 30.10.2010. He submits that a time barred election petition by an unauthorised person was presented before the Election Tribunal, Bareilly, which fact is also evident from the report of Munsarim dated 24.12.2010 and that the election petition, should not have been entertained. He submits that a time barred election petition by an unauthorised person was presented before the Election Tribunal, Bareilly, which fact is also evident from the report of Munsarim dated 24.12.2010 and that the election petition, should not have been entertained. He submits that the petitioner moved a recall application for recall of the ex parte order dated 20.3.2014, but subsequently, she withdrew the application for the reason that she wanted that the result of recounting may be declared. He submits that the impugned order dated 20.3.2014 is wholly arbitrary and illegal. He further submits that the impugned order dated 20.3.2014 was passed without any material evidence on record.The Election Officer/District Magistrate, Bareilly has clearly stated before the Election Tribunal that one ballot box was destroyed by the officer. He submits that under the circumstances, conclusion reached by the Election Tribunal in the impugned order dated 24.12.2010, that the petitioner was in connivance with the officer, was wholly baseless. There was not even slightest material to indicate such situation. He submits that under the circumstances, both the impugned orders deserve to be set aside. 6. Sri Amit Krishna, learned counsel for respondent No. 1 raised a preliminary objection that the recall application filed by the petitioner for recall of the order dated 20.3.2014 was withdrawn by moving an application, which was allowed. Therefore, the present writ petition to challenge the order dated 20.3.2014 is not maintainable. He submits that since one ballot box was found missing and, therefore, the Election Tribunal has drawn an inference that it was the result of connivance of the petitioner with the authorities. He submits that the election of the petitioner has been lawfully declared invalid and the petitioner has been declared elected. He submits that the petitioner has already moved a recall application for recall of the order dated 24.12.2010, which is still pending before the Election Tribunal and as such this writ petition is not maintainable. 7. I have carefully considered the submissions of learned counsel for the petitioner and the respondent No. 1 and with their consent this writ petition is being finally decided without calling for a counter-affidavit. 8. 7. I have carefully considered the submissions of learned counsel for the petitioner and the respondent No. 1 and with their consent this writ petition is being finally decided without calling for a counter-affidavit. 8. Relevant provisions for the purposes of controversy involved in this writ petition are Section 27 of the Uttar Pradesh Kshetra Panchayats And Zila Panchayats Adhiniyam, 1961 (hereinafter referred to as the “Adhiniyam”) and Rule 4 of the Uttar Pradesh Zila Panchayats (Settlement of Disputes relating to Membership) Rules, 1994 (hereinafter referred to as the “Rules 1994) which are reproduced below : “27. disputes as to membership or disqualification— (1) If any dispute arises as to whether a particular person is a member of the Zila Panchayat under (clause a) of Section 18, the dispute shall be referred in the manner prescribed to the State Government and the decision of the State Government shall be final and binding. (2) If a dispute arises as to whether a person— (a) has been lawfully chosen [ x x x ] a member of a Zila Panchayat under Section 18; or (b) has ceased to remain eligible for being chosen [ x x x ] a member of [ x x x ] of the Zila Panchayat for the purposes of Section 20; or (c) has become disqualified to be Adhyaksha or Upadhyaksha 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.” “Rule-4. Manner of raising disputes under Section 27(2) (a) and (b)- (1) If a dispute arises as to whether a person has been lawfully chosen under clause (b) of sub-Section (1) of Section 18 the matter shall be referred by means of a written petition by any person who could legally be a candidate at such choosing to the Judge within thirty days of the date of choosing. (2) If a dispute arises as to whether a person has ceased to remain eligible for being chosen a member, the matter shall in the manner as provided in sub-rule(1) be raised by any person whose name is registered as an elector in the Electoral roll for the territorial constituency of the concerned Zila Panchayat. (2) If a dispute arises as to whether a person has ceased to remain eligible for being chosen a member, the matter shall in the manner as provided in sub-rule(1) be raised by any person whose name is registered as an elector in the Electoral roll for the territorial constituency of the concerned Zila Panchayat. (3) Every petition under sub-rule (1) or sub-rule(2) shall be presented in person by the petitioner, and if there are more than one petitioners by any or all of them.” 9. Article 243-O(b) of the Constitution of India provides that no election of any Panchayat shall be called in question except by an election petition presented in such a manner as is provided for by or under any law made by the legislature of the State. The U.P. State legislature by the aforesaid Act provides for the elections to the member-ship and the office bearers of Kshettra Panchayats and Zila Panchayats. Section 264-B of the Act provides that the manner and conduct of the election of the members and the office bearers of the Zila Panchayats and Kshettra Panchayats as well as that of redressal of their disputes would be as provided under the Rules. 10. In exercise of powers conferred under Section 237 read with sub-section (1) and Sub-section (2) clauses (a) and (b) of Section 27 of the Adhiniyam, the Uttar Pradesh Zila Panchayats (Settlement of Disputes Relating to Membership) Rules, 1994 have been enacted. The aforesaid Rules are in the form of special enactment providing for a complete procedure for settlement of disputes relating to membership which is complete code in itself. 11. A perusal of Rule 4 clearly indicates that an election petition has to be presented within 30 days in person by the petitioner and if there are more than one petitioner by any or all of them. 11. A perusal of Rule 4 clearly indicates that an election petition has to be presented within 30 days in person by the petitioner and if there are more than one petitioner by any or all of them. However, undisputedly, the election petition was filed by respondent No. 1 beyond the limitation of 30 days, as prescribed under Rule 4 and it was presented by the counsel Sri Roop Kumar Singh, Advocate, as evident from the report of Munsarim dated 24.12.2010, which is reproduced below: ^^izLrqrdrkZ Jh :idqekj flag] ,MoksdsV Jheku~th] ;g pquko ;kfpdk izkFkhZ dh vksj ls iapk;r ,oa ftyk iapk;r vf/kfu;e 1961 dh /kkjk 27&1& ds vUrxZr fuokZpu vf/kdkjh ftyk iapk;r }kjk fnukad 30-10-2010 dks ?kksf”kr pquko Cykd ehjxat& ds fo:) nk;j dh x;h gS] tks U;k;ky; ds {ks=kf/kdkj esa gSA U;k;’kqYd Ik;kZIr gSA ijUrq le; lhek ds ckgj gSA bl lEcU/k esa izkFkhZ dh vksj ls ekuuh; mPp U;k;ky; bykgkckn }kjk ikfjr vkns'k fnukad 23-12-2010 dks izkIr gqbZ gS] nkf[ky dh x;h gSA QsgfjLr ls dkxtkr nkf[ky fd;s x;s gSA vr,o Jheku~ th dh lsok esa mfpr vkns'k gsrq izLrqr gSA ,l0Mh0@24-12-2010** 12. It is not in dispute that although, Munsarim submitted his report that the election petition is time barred yet the Court of District Judge, Bareilly, issued notices on the application under Section 5 of the Limitation Act. Learned counsel for the respondent No. 1 could neither point out any provision providing for condonation of delay in presenting a petition under Rule 4 of the Rules nor could point out that any order was passed on the delay condonation application. 13. Nether the report of the Munsarim records the presentation of the petition by the respondent No. 1 in person nor it indicates that the election petition was presented by the aforesaid Advocate in his immediate presence. It is also undisputed that the election petition was filed beyond the period of limitation under Rule 4 of the Rules. The requirements with regard to presentation of election petition and the limitation are mandatory. 14. In the case of Devendra Yadav v. District Election Officer/District Magistrate, Mau, 2011(9) ADJ 219 , this Court considered the provision of Rule 35(2) and Rule 49 of the U.P. Kshettra Panchayat and Zila Panchayat (Election of Pramukhs and Up-Pramukhs and Settlement of Disputes) Rules, 1994 and held in paragraph Nos. 14. In the case of Devendra Yadav v. District Election Officer/District Magistrate, Mau, 2011(9) ADJ 219 , this Court considered the provision of Rule 35(2) and Rule 49 of the U.P. Kshettra Panchayat and Zila Panchayat (Election of Pramukhs and Up-Pramukhs and Settlement of Disputes) Rules, 1994 and held in paragraph Nos. 31, 44 and 45 as under : “31.The Rules provide as stated earlier for the presentation of the election petition in person challenging the election. The challenge to the election which is an outcome of a democratic process is a serious matter affecting the democratic rights of the people. It is for this reason, it has time and again been emphasised that the provisions prescribing the procedure for questioning the result of the democratic process must be strictly construed. The object of providing that the election petition must be presented in person is to ensure that the person presenting it is the same person and that he is very much in existence and further that the petition so presented by him is neither frivolous nor vexatious. 44. In view of the above and the object behind the mandatory provision of Rule 35 (2) of the Rules to check that the election petition is not presented by an impostor but a genuine person who is alive and that it is not frivolous or vexatious, I am of the opinion that irrespective of the fact that the Rules are silent as to the consequence of not presenting the election petition in the manner prescribed, the Court has power to dismiss it as not maintainable without compelling the parties to to through the cumbersome process of trial. In such a situation, the Court below has not erred in applying the ratio of G.V. Sreerama Reddy (Supra) and in the dismissing the election petition as not maintainable on the ground it was not presented by the appellant in person or by his counsel in his presence. 45. To conclude the election petition filed on behalf of the appellant was not validly presented as contemplated by Rule 35 (2) of the Rules and was liable to be dismissed on that ground without undergoing the complete process of trial.” (Emphasis supplied by me) 15. In Harcharan Singh v. S. Mohinder Singh and others, AIR 1968 SC 1500 , the Supreme Court considering the application of doctrine of substantial justice and equity etc. In Harcharan Singh v. S. Mohinder Singh and others, AIR 1968 SC 1500 , the Supreme Court considering the application of doctrine of substantial justice and equity etc. in election law, came to the conclusion as under : “The statutory requirements of election law must be strictly observed. An election dispute is a statutory proceeding unknown to the common law; it is not an action at law or in equity. The primary purpose of the diverse provisions of the election law which may appear to be technical is to safeguard the purity of the election process, and the Court will not ordinarily minimize their operation.” 16. Similarly in Jyoti Basue and others v. Debi Ghosal and others, AIR 1982 SC 983 ; the Apex Court held as under: “A right to elect, a fundamental though it is to democracy is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore subject to statutory limitation. An election petition is not an action at common Law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applied. It is a special jurisdiction and a special jurisdiction has always to be exercised in accordance with the statute creating it.” (Emphasis supplied by me) 17. Thus, Rule 4 of the rule is mandatory in nature and no deviation of the same is permissible. The rules do not provide that defect in presentation of the election petition can be cured subsequently. 18. It is the settled law that if the statute requires a thing to be done in a particular manner then it can be done in that manner alone. However, the Court of Additional District Judge (Court NO. 10), Bareilly without passing any order on the delay condonation application of the respondent No. 1, heard the Election Petition No. 41 of 2010 filed by respondent No. 1 and allowed the same by order dated 20.3.2014. However, the Court of Additional District Judge (Court NO. 10), Bareilly without passing any order on the delay condonation application of the respondent No. 1, heard the Election Petition No. 41 of 2010 filed by respondent No. 1 and allowed the same by order dated 20.3.2014. By the said order the election of the petitioner was declared invalid and the District Election Officer (Zila Panchayat)/Additional District Magistrate (Administration), Bareilly/District Magistrate, Bareilly were directed to recount the votes of Ward No. 25 independently and impartially within 30 days and declare the result. 19. Against the said order dated 20.3.2014, the petitioner filed Civil Misc. Writ Petition No. 34302 of 2014, which was dismissed vide order dated 7.7.2014, as under : “Heard Sri Y.S. Bohra, learned counsel for petitioner and Sri Amit Krishna, learned counsel appearing for respondent No. 1. In the Election Petition No. 41 of 2010 challenging election of petitioner as Gram Pradhan, an ex parte order was passed on 20.3.2014 for re-counting of votes, where against petitioner filed recall application alongwith stay application, which was rejected vide order dated 10.4.2014 and there against this writ petition has been filed. It is admitted by counsels for both the parties that re-counting has already taken place on 10.4.2014. Moreover, no jurisdictional error in the order dated 10.4.2014 could be pointed out. So far as order dated 20.3.2014 is concerned, petitioner’s application for recall of that order is already pending before the Election Tribunal and, therefore, I do not find any justification to interfere at this stage. Even otherwise, since the order of re-counting has been given effect, there is no question of staying that order at this stage. The writ petition lacks merit. Dismissed.” 20. Since, the recall application of the petitioner was pending, therefore, this Court dismissed the aforesaid writ petition. It appears that subsequently, the petitioner moved an application dated 13.10.2014 for withdrawal of her recall application on the ground that recounting has already been done, but the result is not being declared due to pendency of the recall application. By order dated 7.11.2014 passed by the Additional District Judge (Court No. 10), Bareilly, the recall application of the petitioner was dismissed as withdrawn. 21. It appears that in the meantime, an application dated 23.7.2014 was moved by the District Government Counsel (Civil), Bareilly, a copy of which has been filed as Annexure-19. By order dated 7.11.2014 passed by the Additional District Judge (Court No. 10), Bareilly, the recall application of the petitioner was dismissed as withdrawn. 21. It appears that in the meantime, an application dated 23.7.2014 was moved by the District Government Counsel (Civil), Bareilly, a copy of which has been filed as Annexure-19. In this application, the District Government Counsel (Civil), Bareilly, submitted that recounting is not possible, since, in recounting ballot box of four booths were found missing. On this application, the Court of Additional District Judge (Court No. 10), Bareilly passed the impugned order dated 24.12.2014 declaring the respondent No. 1 to be winning candidate and directed the District Election Officer (Panchayat)/District Magistrate, Bareilly to take appropriate action for oath of respondent No. 1. 22. In view of the aforementioned facts, the preliminary objection raised by the counsel for the respondent No. 1 that this writ petition is not maintainable for the reason that the petitioner had earlier filed Civil Misc.Writ Petition No. 34302 of 2014 challenging the order dated 20.3.2014, which was dismissed by order dated 7.7.2014, deserves to be rejected. 23. In the impugned order dated 24.12.2014, the Court below has noted the fact that there were 13 ballot boxes of Ward No. 25, which were kept in a room and when they were taken out from the said room, only 12 boxes were found and one ballot box was missing which contained 2000 votes relating to booth Nos. 21,2 2, 44 and 45. The District Magistrate, Bareilly has called for a report from the Assistant District Election Officer, who submitted the report that one box has been destroyed. The Court below came to the conclusion that it was an act of negligence on the part of the concerned officer. However, without any material or evidences on record and merely on the basis of surmises and presumption the Court below observed that the ballot box in question was removed by the petitioner in connivance with the local administration so that the respondent No. 1 may not be declared elected and on this basis the respondent No. 1 has been declared elected by the impugned order dated 24.12.2010. There was no material at all before the Court below to come to the said conclusion. 24. There was no material at all before the Court below to come to the said conclusion. 24. In view of the above discussions, the impugned orders dated 20.3.2014 passed in Election Petition No. 41 of 2014 and order dated 24.12.2014 passed in Misc. Case No. 73 of 2014 cannot be sustained and are hereby set aside. 25. In result, the writ petition succeeds and is hereby allowed. ——————