NAND DEO PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard Mr. R. N. Bhagat for the petitioner.

(2.) This application is directed against the order of the Election Tribunal, Gram Panchayat, Khagaria, dated the 22nd September, 1970, whereby the election of the petitioner as Mukhiya of Malia Gram Panchayat has been set aside and the election-petitioner Sri Deo Narain Prasad Yadav (respondent No. 3) has been declared to be the successful candidate.

(3.) The controversy centres round seven ballot-papers, the votes recorded whereunder in favour of the election-petitioner were not counted by the Presiding Officer in his favour on the ground that those seven ballot papers were found in the ballot box meant for casting votes in favour of the Panches instead of having been inserted into the ballot box meant for casting votes for the office of the Mukhiya. It is not in dispute that except for the fact that these seven ballot papers were not inserted into the ballot box meant for the Mukhiya, there were no other defects therein. These seven ballot papers, therefore, contained what has been referred to in the present case as "otherwise valid votes" cast in favour of the election petitioner. The Election Tribunal has held and in my opinion, rightly that these seven ballot papers containing valid votes in favour of the election-petitioner should have been counted in his favour and not rejected as was done by the Presiding Officer. Before the Election Tribunal it was urged that these seven ballot papers were rightly rejected by the Presiding Officer on the ground of being spurious ballot papers within the meaning of Rule 51 (2) (e) of the Bihar Panchayat Election Rules, 1959. But the Election Tribunal, in my opinion, has rightly held that the seven ballot papers in question could not be treated as spurious on the mere ground that they were found inserted into the ballot box not meant for the Mukhia. A ballot paper would be spurious, if it is not the authenticated ballot paper meant for use at the election or bears faked distinctive marks or serial number as required under the rules or if it is shown to have been utilised by some person impersonating for the real elector.