The Election Tribunal constituted under the Bihar Panchayat Election Rules, 1959, possesses the power to scrutinize and recount the ballot papers relating to an impugned election. This power is implicit in the Tribunal's authority to compel the production of documents and is necessary to ensure a correct declaration of the election results.

G.N.Prasad, J.

1. The petitioner before this court is the first respondent to an election petition which has been filed under the provision of Rule 72 of the Bihar Panchayat Election Rules, 1959, for avoiding his election to the office of the Mukhiya of Besardh Gram Panchayat., within Murliganj Anchal of the district of Saharsa. He has filed this application under Articles 226 and 227 of the Constitution of India against the order of the Election Tribunal for recount of the ballot papers pertainnig to the impugned election. The main contention of the petitioner is that the Election Tribunal dealing with an election petition under the Bihar Panchayat Election Rules, 1959 , hereinafter referred to as the Rules, is not competent to hold a recount of the ballot papers relating to the impugned election.

2. The election in question was held on the 9th June, 1965. Besides the petitioner, four other candidates had filed their nominations, but the nomination paper of one of them was rejected and two of the other candidates withdrew their candidatures. So the real contest was between the petitioner and Shri Bhola Prasad Mandal, opposite party No. 1 in this court. As a result of the counting of votes, it was announced that the petitioner had secured 575 votes as against 557 votes secured by Shri Bhola Prasad Mandal. Hence the petitioner was declared to have been duly elected. Thereupon, Shri Bhola Prasad Mandal filed an election petition under Rule 72 of the Rules, in which he made various allegations against the legality of the petitioners election. In substance, the case put forward by the election petitioner was that, in fact, it was he who had secured the larger number of valid votes, but the Block Development Officer of Murliganj (Opposite Party No. 7 in this court), who was in collusion with the petitioner, broke the seal of the ballot box and conducted a re-count, although he had no authority to do so, and in course of such a recounting, the ballot papers standing in favour of the election petitioner were illegally rejected. As a matter of fact, the entire recounting had been done in a mala fide manner by an officer who had no authority to interfere with the work of the Presiding Officer. In paragraph 22 of the election petition, the election petitioner put forward his case in the following terms:

"That this petitioner submits that this petitioner ought to be declared elected on the votes secured and ballot papers be counted and scrutinised as the declaration mainly depends upon it."

The relief which the election petitioner sought was that the election of Shri Rasik Lal Yadav be set aside and that the election petitioner should be declared to have been elected as Mukhiya of the Gram Panchayat in question.

3. The petitioner appeared before the Election Tribunal and filed his written statement, wherein he asserted that he had been rightly declared to be the successful candidate in the impugned election.

4. Upon the pleadings of the parties, the Election Tribunal framed three issues in the case as follows:

"1. Has there been any illegality or irregularity in publishing and conducting the election?.

2. Is the counting of votes correct and has the petitioner obtained the highest number of votes and been declared the Mukhiya elected?.

3. Has there been any other counting by the B. D. O., Murliganj and has he the jurisdiction to do it ?."

On the 14th October, 1966, however, the election petitioner filed a petition intimating to the Tribunal that he had waived all the issues except one namely, "Whether the counting was correctly done by the Presiding officer".

5. At the instance of the election petitioner, the Block Development Officer of Kumar Khand, who had acted as the Election Officer in the impugned election, was examined as a witness before the Tribunal. Thereupon a prayer was made on behalf of the petitioner to afford him an opportunity to examine himself before the Tribunal. This prayer was allowed and 6th March, 1967 was