BAIJU PRASAD SINGH Vs. SHEO DANI SHARMA

JUDGEMENT

(1.) This application by Baiju Prasad Singh under Articles 226 and 227 of the Constitution of India is directed against the order dated the 23rd August, 1971 (Annexure 2) passed by the Election Tribunal, respondent No. 3 refusing to frame issue No. 2, as suggested by the petitioner, in the election case, which was instituted by Sheo Dani Sharma, respondent No. 1, against the election of the petitioner as Mukhiya held on the 2nd June, 1971. The suggested issue No. 2 is to this effect:

(2.) In order to appreciate the point involved in this application it will be necessary to state briefly the facts. On 12-6-1971 respondent No. 1 filed an election petition challenging the election of the petitioner before respondent No. 3 and the same was admitted and notices were ordered to be issued on the petitioner under Rule 78 of the Bihar Panchayat Election Rules, 1959 (hereinafter referred to as 'the Rules'). On 18-6-1971 notice, it is alleged by respondent No. 1, was served upon the petitioner. On 28-6-1971 the petitioner appeared and filed an application for adjournment on the ground that the petitioner had to obtain certified copies of necessary documents. The case was adjourned to 1-7-1971. On that date also another application more or less on the same ground was filed on behalf of the petitioner. The case was again adjourned to 5-7-1971 on which date the petitioner filed written statement. On 6-7-1971 the petitioner also filed a challan showing deposit of Rs. 10/-under Rule 81 of the Rules. On 6-7-1971 the petitioner suggested as many as ten issues before the Tribunal (vide annexure 1). Respondent No. 3 by order dated 12-8-1971, after considering the issues suggested by the Parties, framed as many as eight issues. He, however, rejected to frame issue No. 2 which was suggested by the petitioner. The petitioner thereafter filed a petition before it! praying therein that issue No. 2 regarding acceptance of the nomination paper of respondent No. 1 was a vital issue and ought to have been included as one of the issues framed by the Tribunal. Respondent No. 3, however, after hearing the parties by the impugned order rejected the prayer of the petitioner.

(3.) Mr. Lakshman Saran Sinha, learned counsel appearing on behalf of the petitioner, placed before me the impugned order and contended that the Tribunal has erred in construing the provision contained in Rule 81 of the Rules, which reads as: