BAIJ NATH PANDEY Vs. BISBUN DUTT AND OTHERS

JUDGEMENT

(1.) Bishnu Dutt, respondent No. 1 was a contestant to the office of Pramukh of Block, Shukul Bazar, Tehsil Musafirkhana, district Sultanpur. On 20-5-1983 he was declared elected to the office of Pramukh by the Returning Officer. The election of respondent No. 1 was challenged by Baijnath Pandey by means of an election position under Sec. 7, U. P. Kshettra Samitis and Zila Parishads Adhiniyam No. 33 of 1961 (hereinafter referred to as the Act) read with Rule 35 of the U. P. Kshettra Sami ties (Election of Pramukhs and Up-Pramukhs and Settlement of Election disputes) (hereinafter referred to as the Rules). A perusal of the record indicates that the election of respondent No. 1 was challenged on various grounds but during the course of trial of the election petition and during the course of arguments before this court the challenge was confined only to five votes. The contention of the appellant is that at the time of counting Returning Officer did not reject three ballot papers which contained marks by which the voters could be identified afterwards and which were cast in favour of respondent No. 1. It is further contended that the ballot papers issued to Smt. Ram Dulari and Ayodhya Prasad ought to have been rejected because they were accompanied by respondent No. 1 and Anil Kumar, sisters son of respondent No. 1 to the polling booth. The Returning Officer counted the above votes in favour of respondent No. 1 as such the declaration of result in favour of respondent No. 1 is bad.

(2.) Respondent No. 1 Bishnu Dutt contested the election petition and filed a written statement. He admitted that respondent No. 1 and Anil Kumar, his sisters son, helped Smt. Ram Dulari and Ayodhya Prasad in casting their votes. It was pleaded that secrecy was maintained. It was further pleaded that there was no mistake in counting and no invalid vote was counted in favour of respondent No. 1. It was further denied that there was any previous arrangement with the voters and respondent No. 1 in regard to identification of votes. On the above pleadings the two issues which are relevant for the purpose of this appeal were framed as follows :

(3.) 1st Additional District Judge, Sultanpur as Election Tribunal dismissed the petition of the appellant by order dated 11-1-1980. Aggrieved by the said order the present appeal has been filed in this court. A perusal of the judgment rendered by the Tribunal indicates that he has recorded a finding that there was no evidence to substantiate the pleading that there was any previous arrangement in between respondent No. 1 Bishnu Dutt and voters regarding putting of any marks on ballot-papers by voters. It was further observed by the Tribunal that since there was no written objection of the appellant at the time of counting and since the Returning Officer has not been examined in the case, it cannot be said that the ballot-papers contained marks on them at the time of counting. The Tribunal also held that votes of Smt. Ram Dulari and Ayodhya Prasad were valid as no objection to that effect was raised at the time of counting and further there was no merit in the contention of the appellant that the acceptance of their votes was contrary to Rule 24 of the rules as amended by Rules of 1983. After recording these findings the election petition was decided.