NATHU Vs. SUB-DIVISIONAL MAGISTRATE

JUDGEMENT

(1.) THIS petition has been filed against the order of the Election Tribunal refusing to permit inspection of the marked copy of the Electoral Roll and the Ballot Papers in respect of which the Petitioner had raised objections.

(2.) THE Petitioner had been elected Pradhan. Respondent No. 2, Krishna Kanhaiya, filed an election petition under Section 12 -G of the U.P. Panchayat Raj Act to challenge the election. He also claimed that he should be declared elected. A written statement had been filed by the present Petitioner to the effect that the number of valid votes declared to have been secured by Respondent No. 2 was not correct, because some persons had impersonated for dead persons and for those who were out of station on the date of election, and those persons had cast their votes illegally in favour of Respondent No. 2. For this purpose, the Petitioner wanted the Election Tribunal to permit him inspection and production in evidence of the marked copy of the Electoral Roll in so far as it related to those persons and also the Ballot Papers concerning those persons. This was objected to by Respondent No. 2. The Tribunal rejected the application with an observation that if necessary, he would himself inspect the relevant records, Subsequently another application was made for inspection and bringing on record these documents, and that was rejected on the ground that it would violate the secrecy of election papers. The Petitioner has challenged the orders of the Tribunal.

(3.) BUT , before the Tribunal can permit the material to come on record in the form of evidence, it must be satisfied, that a prima facie case has been made out by the Petitioner. Learned Counsel for the Petitioner, in this respect, contended that the point is not even disputed by Respondent No. 2 so far as his allegation that certain voters were dead and certain others were absent is concerned. Learned Counsel for Respondent No. 2 denies this assertion. For the Petitioner, the copy of the application filed by Respondent No. 2 was filed along with the writ petition as annexure '3'. On the basis of this document, he has asserted that the Respondent No. 2 has admitted the Petitioner's case that certain persons, mentioned by him in paragraph 7 of the written statement, were dead, and those mentioned in paragraph 8 of the written, statement were absent. It is not for this Court to decide, as to whether the Petitioner has succeeded in prima facie, establishing his case or not. It will be for the Tribunal to decide the same. It is for the Petitioner either to rely on the admission or to lead evidence to establish his case. If the Petitioner elects not to lead any evidence, but to rely on the pleadings for purposes of admission and establishment of a prima facie case, it would then be for the Tribunal to determine on the basis of the pleadings if the prima facie case has been established. 'If the Petitioner leads evidence, the Tribunal would consider the evidence as well as the pleadings.