NAVAL KISHORE Vs. GANESH SINGH

JUDGEMENT

(1.) THIS appeal is preferred under Section 49 of U.P. Kshettra Panchayat (Election of Pramukh and Up -Pramukh) Rules, 1994, and is directed against judgement and order dated 4th of September, 2004, passed in election petition no. 42 of 2003, by Shri V.K. Jain, Learned District Judge, Pauri.

(2.) BRIEF facts of the case are that appellant Naval Kishore, respondent no. 1 Ganesh Singh, and respondent no. 3 Harsh Mani, were candidates for election to the post of Block Pramukh of KOT (District Pauri). The election was held on 17.05.2003 under the supervision and control, of Returning Officer/Election Officer (respondent no. 3). The counting of votes was also done on the same day. In the counting of votes. of first preference, the appellant Naval Kishore, secured nine votes, respondent Ganesh Singh secured eight votes, and remaining six votes were polled in favour of respondent no. 2 Harsh Mani. As per the rules, Shri Harsh Mani, being the person who secured lowest number of votes got eliminated and excluded from the run and his second preference votes were counted. It appears that out of the six votes only in one ballot paper, second preference was recorded which was counted in favour of respondent Ganesh Singh. And as such now both Naval Kishcire (Appellant) and Ganesh Singh (respondent no. 1) got tied up, each securing nine votes. The Returning Officer, considering that Naval Kishore has secured more number of first preference votes, declared him elected. Shri Ganesh Singh aggrieved by the said declaration, filed an election petition under Rule 35 read with Rule 38 of U.P. Kshettra Panchayat (Election of Pramukh and Up -Pramukh) Rules, 1994 (hereinafter for brevity, the Rules} before the District Judge, Pauri. In the election petition, it is alleged that one vote counted in favour of the defendant -appellant was invalid vote as the secrecy was violated in polling the same. It was also alleged in the election petition by the plaintiff (respondent no. 1) that Returning Officer was in collusion with the defendant -appellant as he did not order recounting even after request made in this regard by him. Contesting the election petition, the defendant appellant denied allegations of violation of secrecy in Polling of any of the votes. He defended the result declared by the Returning Officer and alleged that the same was done in accordance with law. Learned District Judge, after perusing the Pleadings, framed the following issues:

(3.) THE District Judge, Pauri after recording evidence and hearing the parties, passed the impugned order dated 04.09.2004, whereby he allowed the election petition and set aside the declaration of election result in favour of Naval Kishore (defendant appellant), and directed the Returning Officer to recount the votes and to declare the result afresh. While allowing the election petition, learned District Judge also observed that one vote counted in favour of the defendant appellant was invalid. Therefore, aggrieved by the judgement and order of the District Judge, Pauri, this appeal has been filed.