JAGAT NARAYAN, J.—This is a petition under Art. 226 of the Constitution by Ganeshram against an order of the Munsif, Bikaner, acting as a Tribunal under rule 78 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules, 1960 setting aside his election petition filed by the defeated candidate Megharam. The petition has been contested on behalf of Megharam.

2. Polling took place on 1.1.65. The polling station was divided into two booths. In the box in booth No. 1 the voters of wards Nos. 1 to 5 were to cast their votes in the box in booth No. 2 voters from wards Nos. 6 to 8 were to cast their votes. The Returning Officer Shri Shiv Charan Kashyap was incharge of booth No. 2 in particular and Shri Kamal Kishore, Assistant Polling Officer was incharge of booth No. 1. The time for polling was upto 5 p. m. At 4.15 p.m. a disturbance took place in booth No. 1 in which Shri Kamal Kishore was severely beaten. This much is not disputed. What happened afterwards is a matter of some controversy between the parties. I have perused the material on record and I agree with the findings of fact arrived at by the Tribunal. According to these findings when the disturbance took place the remaining voters who had not cast their votes did not cast them. The boxes were kept open till 5 p.m. and they were sealed after the voting time was over by the Returning Officer, who sent a report (Annexure A-l) to the Collector Bikaner after 5 p.m. In this report it is mentioned that at 4.15 p.m. some villagers beat the Assistant Polling Officer Shri Kamal Kishore severely and after this beating the situation got out of control and polling stopped. The Return-ing Officer further stated that he had sealed the box but was afraid that he too might be attacked. He asked the Collector to send medical aid for Kamal Kishore and make arrangement for the personal protection of the Returning Officer.

3. Shri Kashyap stated that he received the reply from the Collector on 2.1.65 and then issued an antidated order adjourning the poll in booth No. 1 to 3.1.65. On 3.1.56 fresh poll of wards No. 1 to 5 was held. The Returning Officer counted the votes in ballot box of booth No. 1 of 3.1.65 and counted the votes of ballot box of booth No. 2 of 1.1.65 and declared Ganesharam as duly elected. Out of votes cast on 1.1.65 in booth No. 2 Ganesha Ram got 83 and Megharam got 187. Out of votes cast on 3.1.65 in booth No. 1 Ganesharam got 153 and Megharam got 14.

4. The learned Munsif held that the polling which took place on 3.1.65 was invalid. On this ground he set aside the election of Ganesharam without counting the votes cast in the ballot box in booth No. 1 on 1.1.65. In doing so he obviously erred. He should have counted the votes cast in the ballot box of booth No. 1 on 1.1.65 and declared the result of the election as a result of counting the votes cast on 1.1.65 in the ballot boxes in the two booths.

5. The ballot boxes were kept open till 5 p.m. and although the voting stopped at 4.15 p.m. when there was disturbance there is no material on record to show that the result of the election was thereby materially affected. This could only be done by proving affirmatively that if disturbance had not taken place the candidate who actually polled the majority of valid votes would not have done so. Only the Returning Officer could have adjourned the poll to 3.1.65 under rule 37. This he did not do. Further the poll could only have been adjourned under that rule before the polling time was over. This was not done. Moreover when a poll is adjourned under rule 37 then on the adjourned date only those voters who did not vote on the previous day can cast their votes. There cannot be thus the polling which took place on 3.1.65 was illegal.

6. I accordingly allow the writ petition, set aside the order of the Tribuna and remand the election petition to it for decision in accordance with law in the light of the directions given above. The Tribunal shall count the votes in the ballot box of both

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