MOHD. KAISAR Vs. CHHABILI DEVI AND ANR.

JUDGEMENT

(1.) PRESENT writ petition has been filed by the petitioner Mohd. Kaisar, questioning the validity of decision taken by the Election Tribunal dated 15.12.2009 directing for summoning of the election papers, inspection of ballots and recounting and thereafter posting the matter for final hearing.

(2.) BRIEF background of the case, as mentioned in the writ petition, is that election for the post of President of Nagar Panchayat Devraniya, Tehsil Baheri, District Bareilly had been held on 03.11.2006 and the result of the said election was declared on 07.11.2006. In the election so held, in all, there were 9 contesting candidates, including the petitioner. The petitioner claims to have secured 2401 votes, whereas the election petitioner had secured 2396 votes. Questioning the validity of said election, election petition was filed, being election petition No. 34 of 2006, by Smt. Chhabili Devi. In the said proceeding an application under Order VII Rule 11 C.P.C. for quashing of the election petition had been filed. The Election Tribunal proceeded to pass order on the said application that the same was not at all liable to be allowed. The matter travelled up to this Court in the shape of writ petition No. 19136 of 2008, and this Court vide its judgment dated 02.05.2008 dismissed the said writ petition, noting therein that the petitioner had not filed written statement till that date; he should file his written statement. Thereafter, written statement was filed and replica was also filed to the said written statement. In the election petition so filed, in all, 12 issues were framed. In support of the averments made in the election petition three witnesses were examined by respondent No. 1 and two witnesses were examined from the side of the petitioner. Said election petition was posted for hearing on 26.11.2009. On said date an application 112 -gha was filed by respondent No. 1 for calling of the record from the election office with regard to election in question and for a direction for recounting of ballots. Against the said application objections had been filed and this document was numbered as 114 -gha; counter affidavit was also filed and the same was numbered as 116 -gha. Said application had been allowed on 15.12.2009, directing for summoning of the election papers and for recounting of the ballot papers and straightaway for reserving the judgment. At this juncture present writ petition has been filed.

(3.) SRI K.N. Tripathi, Senior Advocate, assisted by Sri Chandan Kumar, Advocate, appearing in support of the writ petitioner, contended with vehemence that in the present case Election Tribunal has totally misdirected itself without undertaking requisite exercise and without recording finding that there was cogent evidence available on record on prima facie basis, which warranted summoning of record in respect of ballot papers and recounting, on totally bald and evasive statement of fact and without considering the cross examination of the incumbents, whose statements had been recorded, on mere surmises and conjectures has proceeded to pass the impugned order, and has further committed material irregularity by directing that after recounting, arguments would be closed and judgment would be reserved, as such the judgment and order passed by the Election Tribunal is liable to be set aside.