SAMIULLAH Vs. SALEEM MOHAMMAD AND ORS.

JUDGEMENT

(1.) THIS First Appeal From Order under Rule 49 of the U.P. Kshettra Samitis (Election of Pramukhs and Up -Pramukhs and Settlement of Election Disputes) Rules, 1962 is directed against order dt. 1st October, 1984 passed by the Election Tribunal/IV Additional District Judge, Gonda in Election Petition No. 76 of 1983, Saleem Mohmood v. Baldeo Singh and four others by which the election of the appellant Samiullah as Block Pramukh has been set aside and respondent No. 1 Saleem Mohmood has been declared elected as Block Pramukh of Sri Dutt Ganj Block district Gonda. Briefly stated, the facts of the case are that the election of Block Pramukh of Block Sri Dutt Ganj was notified to be held on 29th May, 1983. Since six persons were contesting the election for the said post, and, as such polling took place on the said date. Counting of votes was done by the returning officer on the same day, i.e. on 29 -5 -1983 and it was found that the appellant Samiullah had polled 44 votes and the respondent No 1 Saleem Mohamood had also received 44 votes. Since both these persons had polled equal votes, the returning officer held lottery between the appellant and respondent No. 1 and as a result thereof, appellant Samiullah was declared duly elected in the said election as Block Pramukh of Sri Datt Ganj block, district Gonda. The appellant took charge of the office and started functioning as such. Respondent No. 1 Saleem Mohmood filed an election -petition under Rule 35 of the U.P. Kshettra Samitis (Election of Pramukhs and Up -Pramukhs and Settlement of Election Disputes) Rules, 1962 (hereinafter to be referred to as the Rules), This petition was filed before the District Judge, Gonda and it was transferred to the Court of IV Additional District Judge, Gonda, who decided this election -petition by order dt. 1st October, 1984 declaring respondent No. 1 Saleem Mohamood as elected in place of appellant. This order has been challenged in this appeal by Samiullah.

(2.) I have heard learned counsel for the parties at some length and have perused the impugned order and other relevant papers.

(3.) LEARNED counsel for the appellant had next contended that an application under Rule 39 of the Rules was moved by the appellant on 1.10.1884 for leading evidence in order to indicate that even if the election -petitioner would have been declared as elected his election deserved to be declared void as one of such ballot paper has been counted in favour of the election -petitioner in spite of the fact that first preference mark was put against the name of the appellant while mark of second preference was put against the name of election -petitioner. It was further asserted that there were three such more ballot papers in which no preference marks were put end some such marks were also made which could disclose the identify of the voter. These ballot papers ought to have been declared void and have been wrongly counted in favour of the election -petitioner -respondent No. 1. It was asserted by the appellant that he could not lead evidence on the point because the proceedings were hurriedly carried and in the interest of justice he be given opportunity to lead evidence as contemplated in Rule 39 of the Rules. It was pointed out by the learned counsel that this application was rejected by order quoted below: