HAKIM ROUT Vs. MATHURA PRASAD

JUDGEMENT

(1.) This application under Articles 226 and 227 of the Constitution of India has been filed by the sole petitioner in order to quash the order dated 4th February, 1972 (Annexure '1') of the Election Tribunal, respondent No. 4, ordering recount of the votes cast in favour of the petitioner.

(2.) In order to appreciate the points involved in this application, it will be necessary to briefly state the facts. The petitioner was elected as Mukhiya of Bhairwa tole Bhawanipur Gram Panchnyat In the district of Champaran on the 19th of January, 1970, Mathnra Prasad respondent No. 1, challenged the election of the petitioner before respondent No. 4 on various grounds including corrupt practice. Witnesses on behalf of the petitioner as well as respondent No. 1 were examined before the Election Tribunal. On the 16th October, 1971, respondent No. 1 filed a petition for inspection of ballot papers and recounting of the same. The petitioner, however, objected on the ground that the Tribunal should not allow piecemeal trial and recounting of the ballot papers should not be ordered as a preliminary issue. After hearing the parties, respondent No. 4 held in favour of respondent No. 1 and directed the recounting and inspection of votes cast in favour of the petitioner by the impugned order.

(3.) Mr. Gorakhnath Singh, learned counsel appearing on behalf of the petitioner has raised chiefly two points for consideration by this Court, namely, (i) when the hearing of the election case had advanced, the Tribunal ought not to have decided about the recounting of the votes cast in favour of the petitioner as a preliminary issue, and (it) the Tribunal erred in giving direction of recounting of votes which were cast in favour of the petitioner alone. According to learned counsel, for the ends of justice, respondent No, 4 ought to have ordered recounting of the votes which were cast also in favour of respondent No. 1, I will take up for consideration point No. 1 first. In my opinion, there is no merit in this point as it is well-established that a Tribunal has discretion to decide about recounting of votes cast in favour of one party or the other as a preliminary issue. Moreover, in the instant case only a few witnesses were examined. There are other more witnesses to be examined on behalf of the parties. Therefore the hearing of the election petition had not advanced to a considerable extent.