NILAMBAR SINGH Vs. RAMESHWAR CHOUDHARY

JUDGEMENT

(1.) The petitioner has obtained a rule from this Court under Articles 226 and 227 of the Constitution of India as to why the orders dated the 24th Of August. 1971 (Annexure 2) and dated 26th of August, 1971 (Annexure '3') passed by the Election Tribunal, Araria (Purnea), hereinafter referred to as the Tribunal, in Election Tribunal case No. 1 of 1971 be not quashed and cancelled.

(2.) By order dated the 24th of August, 1971 the Tribunal refused the prayer of the petitioner for recounting and inspection and thereafter by the second order, i. e., order dated 26th of August, 1971, it has dismissed the election petition itself on merits.

(3.) The short facts leading to the controversy are that the petitioner and respondents 1 and 3 were candidates for the election for the office of Mukhiya of Kankhudia Gram Panchayat in the district of Purnea, which took place on the 23rd of May, 1971 at booth Nos. 5 and 6. The petitioner lost the election by a margin of one vote only to respondent No. 1. The petitioner secured 559 votes whereas respondent No. I 560 votes and accordingly he was declared elected. The petitioner filed an election case before the Tribunal, as aforesaid. The election petition is Annexure '4' to this writ application. The petitioner in paragraph 9 of the election petition has made a statement that the voter of ballot paper No. 36 has not put any seal and that of ballot paper No. 459 put seals on the symbols of two candidates, namely, opposite party Nos. 1 and 2, and, therefore, those two ballot papers which should have been declared invalid have been wrongly counted. At another place in the petition in paragraph 14, he stated that the circumstances and the facts of the case required recounting of the ballot papers. The order sheet of the election case is Annexure '1' to the petition. On 9th June, 1971 the Tribunal passed an order for reminding the Block Development Officer concerned to send the ballot papers without any delay as the next date for counting had been fixed on 15-6-1971. The parties started adducing evidence in this case and the petitioner examined certain witnesses. From the mouth of those witnesses the petitioner wanted to show that the ballot papers had been wrongly counted by the Presiding Officer. The Presiding Officer himself was examined as D W. 1 in this case and some of his statements are referred to in the order dated 24th of August, 1971 by the Tribunal itself. This witness has admitted in his cross-examination that the petitioner had objected to the allowing of the two concerned votes to respondent No. 1 at the time of counting at the booth, but his objection was overruled by him The petitioner also had got this fact of the objection stated through the mouth of other witnesses examined by him. The Tribunal has considered their evidence no doubt, in the order Annexure '2", but in view of the two certificates, namely, Exhibits A-1 and B which were issued by the counting agents of the petitioner to the effect that the counting was done fairly, the Tribunal has concluded that that evidence was conclusive against the petitioner so far the fairness of the counting was concerned. The Tribunal has also drawn adverse inference for non-examination of one Chandrika Yadav, one of the counting agents of the petitioner. It would be suffice to state the findings of the Tribunal itself as follows: