JAIKANT JHA Vs. BISHWANATH JHA

JUDGEMENT

(1.) THIS application has been filed by Sri Jaikant Jha under Articles 226 and 227 of the Constitution of India, praying that two orders dated 23rd July 1966 and 1st September, 1966, passed by the Election Tribunal in Case No. 25 of 1965 be quashed. By order dated the 23rd July 1966 the election of the petitioner as the Mukhia of Uchhati Gram Panchayat in Biroul Block in the district of Dar-bhanga, held in 1965 has been declared to be void, and the election petitioner named Sri Bish-wanath Jha has been declared to be the duly elected Mukhia of the said Gram Panchayat. Bv the order dated the 1st September, 1966, a review application filed by Sri Jaikant Jha has been rejected.

(2.) THE real order in this case, on which arguments have been advanced by the learned counsel for the parties, is the one dated the 23-7-1966. Learned counsel for the petitioner has urged three points in support of this application the first one being that the petitioner had no notice of the election case and that it has wrongly been assumed that he had refused to appear in spite of notice. THE second contention is that no evidence was led on behalf of Sri Bishwanath Jha in support of his election petition and, therefore, the election of the petitioner should not have been declared void on the mere allegations made in the election petition. Thirdly, it is contended that Sri Bishwanatha Jha has wrongly been declared as the duly elected Mukhia. In my opinion, the second and the third contentions raised by the learned counsel for the petitioner are of force and this application must succeed on those contentions. It is clear from the record that no evidence was led on behalf of Sri Bishwanatha Jha, although towards the end of the order the Election Tribunal has stated that the application should be allowed in view of the ex parte evidence. Learned counsel for Sri Bishwanatha Jha has contended, on Rule 79 (2) of the Bihar Panchayat Elections Rules, 1959, that there was no bar in the Election Tribunal allowing the election petition merely on the petition, which had fulfilled the requirements of Rule 72 read with Rule 75. Reliance is placed on the expression "as nearly as may be" appearing in Rule 79 (2) and it is argued that the Civil Procedure Code does not apply in all its strictness to an election petition, and, therefore, the election case can be disposed of on merely the election petition. But I do not think that this contention is valid and should be accepted. THEre is no indication in Elections Rules that a departure was in contemplation. THE meaning of expression "as nearly as may be" appearing in Section 90 of the Representation of the People Act, 1951 (Central Act 43 of 1951), has been explained by their Lordships of the Supreme Court in the case of Dr. Jagjit Singh v. Giani Kartar Singh, AIR 1966 SC 773. But, I do not think that the contention raised by the learned counsel for Sri Bishwanath Jha can be accepted for holding that in view of Rule 7.9 (2), the election petition filed under Rule 72 can be decided in his favour even if the petitioner gives no evidence before the Election Tribunal. THErefore, the Tribunal was under an erroneous impression when it stated that the application filed by Sri Bishwanath Jha must be allowed "in view of the ex parte evidence". THEn Sri Bishwanth Jha has been declared to be duly elected on a reasoning which cannot be upheld. THE Tribunal has stated that the margin of votes polled by Sri Bishwanath Jha and the elected candidate Sri Jaikant Jha, was only 39, and, therefore, on the mere allegations made in the election petition, Sri Bishwanath Jha was entitled to be declared as the duly elected Mukhia. THE law in this context is incorporated in Rule 74 and the Election Tribunal has not come to any conclusion required under that rule, although it has declared Sri Bishwanath Jha to be the duly elected Mukhia. Before Sri Bishwanatha Jha could be declared to be duly elected, the Election Tribunal had to come to some or any of the conclusions required under Rule 74, on legal evidence. In this context also, I am of the opinion that the Election Tribunal has misdirected itself. THE first contention raised by learned counsel for the petitioner is one of controversial fact and it need not be finally decided in this case, as the order of the Election Tribunal dated the 23rd July, 1966, is quashed on other grounds mentioned above, THE election case should now be disposed of in accordance with law. It is not necessary to pass any specific direction with respect to the order passed by the Tribunal on the 1st September, 1966, as the order dated the 23rd July, 1966, is being quashed. THEre will be no order for costs of this Court.