ABDUL QASIM KHAN Vs. NAURANG SINGH AND OTHERS

JUDGEMENT

(1.) This is an application under Articles 226 and 227 of the Constitution of India for the purpose of quashing an order passed by the Election Tribunal setting aside the election of the petitioner as Mukhia of a Gram Panchayat. The petitioner's case is as follows. The election for the office of Mukhia of the Gram Panchayat of Bhadeya in the district of Gaya was to take place and the petitioner and the first respondent besides one more person filed their nomination papers which were accepted. Thereafter the third person withdrew from the contest and an election was held as a result of which the petitioner secured 712 votes whereas the first respondent got 705 votes and, therefore, the petitioner was declared duly elected. The first respondent then filed an election petition before the Tribunal. The petition was not verified in accordance with law nor was the schedule of corrupt practices attached to the petition verified as required by rules nor was it supported by any affidavit as required by rules nor was it supported by any affidavit. It should have, therefore, been dismissed. The Election Tribunal, however, proceeded to hear the matter and without settling any issues or taking any evidence or affidavits the Tribunal held a recounting of votes and as a result thereof set aside the election of the petitioner and declared the first respondent as duly elected. The petitioner was then asked to hand over charge to the respondent but he has not done so. Hence this application for quashing the order of the Tribunal.

(2.) A counter -affidavit has been filed by the first respondent. It is stated therein that the counting of the votes at the election and the announcement of the result was not correct and fraud had been practised therein and the Tribunal, therefore, has rightly held recounting. It is further said that no objection had been raised by the petitioner to the aforesaid recounting and in fact he had agreed to it and thus it is not open to him to challenge that. With regard to verification of the election petition it is stated that the petitioner had not taken any objection thereto and that it was properly verified as required by law. It is also said that the only issue involved in the case was known to both the parties and it required no evidence or affidavit and the questions do not arise.

(3.) Learned counsel for the petitioner has raised the following points. Firstly, that the petition not being verified or supported by any affidavit and there being no list of corrupt practices accompanying the petition as required by Rule 75 of the Bihar Panchayat Election Rules, 1959 (hereinafter referred to as 'the Rules') and the defect being fatal the Election Tribunal should have dismissed the petition under Rule 77 thereof. Secondly, that the recounting was improper for the reasons (a) that no case had been made out in the election petition by disclosing materials facts, (b) that the Tribunal had framed no issue nor taken any evidence, and (c) that the Tribunal has given no reasons for accepting or rejecting certain votes at the recounting.