Verification of election petition and inspection and recounting of ballot papers in Panchayat elections.

B.D.Singh, J.

1. This application under Articles 226 and 227 of the Constitution of India by the sole petitioner. Ram Narayan Yadav, is directed against the order dated the 31st March, 1971, passed by the Election Tribunal (respondent No. 3) (Annexure 2) setting aside the petitioners election as Mukhiya of Nanaura Gram Panchayat and declaring Garib Yadava, respondent No. 1, as duly elected Mukhiya of the said Panchayat in place of the petitioner.

2. The petitioner along with respondent No, 1, and three persons had filed their nomination papers on the 2nd June, 1969, for election of the Mukhiya of the said Panchayat. Subsequently, the other three candidates withdrew their nomination. Therefore, the petitioner and respondent No. 1 alone were left in the field for contest for the post of Mukhiya. According to the programme the polling for the election was held on the 30th October, 1969. The petitioner secured 838 votes while respondent No. 1 secured 781 votes. Therefore, the petitioner was declared elected as mukhiya by a margin of 57 votes on the same date. On the 29th November, 1969, respondent No. 1 under Rule 72 of the Bihar Panchayat Election Rules, 1959 (hereinafter referred to as the Rules) filed an election petition (Annexure 1) before respondent No. 3 against the election of the petitioner within thirty days from the date of result of the election. Since the affidavit of the said petition was not in proper form respondent No. 1 swore another affidavit and filed the same on the 3rd March, 1970.

The main grounds for setting aside the election of the petitioner are alleged in paragraph 4 of the election petition. Respondent No. 1 alleged that at booth Nos. 49 and 50 votes were cast on false impersonation in the names of dead and absentee voters. Further voters were brought at the booth on hired bullock-carts by the petitioner. Location of booth No. 51 was changed just before the date of election due to which large number of voters of respondent No. 1 could not cast their votes in confusion. Respondent No. 1 further stated therein that inspection and scrutiny of ballot papers of booth Nos. 49 and 50 would reveal that votes of dead and absentee voters had been cast on those two booths in favour of the petitioner. On the 12th September, 1970, respondent No. 1 filed an application before respondent No. 3 for an order for inspection and scrutiny of the ballot papers -- vide Annexure D to the counter affidavit filed on behalf of respondent No. 1.

This application was objected by the petitioner in his petition dated the 16th September, 1970, Annexure E of the aforesaid counter-affidavit. However, by order dated 26th March, 1971, and 27th March, 1971, respondent No. 3 inspected the ballot papers, scrutinised and recounted them. On recounting he found that respondent No. 1 had secured 780 votes whereas the petitioner had secured only 773 votes. Thus, respondent No. 1 had in fact secured 7 votes more than the petitioner and thereafter he passed the impugned order. As mentioned above, the petitioner, aggrieved by the said order, has come up to this Court impleading Garib Yadav, Election Officer (B.D. O.) Keoti Ranway, Election Tribunal, District Magistrate, and Director, Gram Panchayat, as respondents 1 to 5 respectively, and obtained the rule. By order dated the 10th May. 1971, the operation of the order dated the 31st March, 1971, passed by respondent No. 3, was stayed till the decision of this case.

3. On receipt of notice, respondent No. 1 appeared and filed counter affidavit dated the 28th June, 1971.

4. Mr. K. P. Verma, learned Counsel appearing on behalf of the petitioner, has challenged the impugned order chiefly on two grounds, namely, (i) respondent No. 3 erred in not dismissing the election petition of respondent No. 1 summarily under Rule 77, since the election petition was not duly verified and was contrary to the mandatory provisions contained in Rule 75 of the Rules; and (ii) he further erred in allowing inspect