AMBIKA PRASAD DUBEY Vs. DISTRICT MAGISTRATE ALLAHABAD

JUDGEMENT

(1.) Leave granted.

(2.) The election to Pradhan of the Gaon Sabha, Gedurahi, was held on 5th July 1988. The petitioner and respondent No. 4 were rival candidates. The counting was held on 6 August 1988. During the counting there was sudden breakdown of electricity supply and consequently the counting has to be stopped till the electricity was restored. During the interregnum some more ballot papers were mixed up in the bundle belonging to respondent-4. When the recounting was started, it was discovered upon scrutiny that the mixed up ballot papers were not issued by the Presiding Officer at the time of polling. The Assistant Returning Officer by his report recorded the serial numbers of such papers which were in all 46 but in the counter affidavit of the Assistant Returning Officer filed in this Court, it is stated that there were only 41 such ballot papers. At the end of counting, the respondents-4 was declared to have secured 484 votes including that 41 ballot papers as against 456 secured by the petitioner. There was, however, no declaration of the result of the election. Instead, fresh poll was ordered by the District Magistrate, Allahabad on report of the Assistant Returning Officer. The fresh poll was ordered in exercise of powers vested in him under R. 21G(3) of the U. P. Panchayat Raj Rules ("Rules"). The petitioner challenged the validity of the District Magistrate's order before the Allahabad High Court. The High Court has dismissed the Writ Petition. It has expressed the view that it was well within the powers of the District Magistrate to direct repoll and his order does not suffer from any error of law. The petitioner being aggrieved now appeals to this Court.

(3.) The question for consideration is whether the fresh poll was justified under law on the aforesaid facts. In our considered opinion, it is wholly unjustified, illegal and without jurisdiction.