BRAJESH KUMAR Vs. MEENA DEVI

JUDGEMENT

(1.) S. U. Khan, J. Heard learned Counsel for the parties. This First appeal under Rule 49 of U. P. Kshetra Panchayat (Election of Pramukhs and Up-Pramukhs and Settlement of Election Dispute) Rules, 1994 has been filed by the winning candidate whose election has been set aside by the impugned judgment and order passed by District Judge, Hathras in Election Petition No. 2 of 2006 Smt. Meena Devi v. Brajesh Kumar. The dispute relates to the election of Block Pramukh, Kshetra Panchayat Sahpau District Hathras. Total 54 voters cast their votes. According to the final result declared, Brajesh Kumar obtained 27 votes, Smt. Meena Devi obtained 26 votes and one vote was declared invalid. The elec tion petition was filed mainly on the allegation that after completion of counting both the parties were declared to have obtained equal number of votes i. e. 27 each and Assistant Returning Officer (A. R. O.) who was B. S. A. (Basic Shiksha Adhikari) indicated that result would be declared on the basis of lottery. However, meanwhile A. R. O. received a phone call and thereafter he manipulated an addi tional straight line in one vote of Smt. Meena Devi and thereafter declaring the said vote invalid, declared Brajesh Kumar elected by one vote. Original ballot papers were summoned by the learned District Judge. The learned District Judge pointed out that one line parallel to the (1) indicated by the voter in the ballot paper was drawn in different ink to make the said vote invalid. I have also perused the said ballot paper. There is absolutely no doubt that the ink is different. The main question is as to who did it and its effect. Before entering into the merits of the appeal in detail it is essential to note that the election has been declared invalid by the impugned judgment only on the ground that manipulation in the ballot paper was done by A. R. O. There is no finding that inspite of the additional line in the ballot paper, the vote still remained valid has not been discussed in the impugned judgment. During the course of the arguments of learned Counsel for the appellant when he opened his argument regarding the aforesaid aspect I called upon learned Counsel for the respondent to enquire as to whether this point was taken before the Court below and whether he would be pressing this point or not. Learned Counsel for the respondent categorically stated that even though he was very much interested to press the said point as in his opinion favourable decision on this point alone could culminate in the judgment in favour of his client, however, as this point was not raised before the Court below hence he was handicapped in pressing the said point.

(2.) HOWEVER, when learned Counsel for the respondent started his arguments after the conclusion of the argument of learned Counsel for the appellant he did dwell upon this aspect also.

(3.) IT may be mentioned that first ground was regarding disqualification of the respondent. The said ground has not been argued in this appeal.