The petitioner and respondent No. 2 were candidates at the election for the office of Pradhan of Gaon Sabha, Bhaluhi, in the district of Ballia. The petitioner was declared elected having secured 249 votes as against 248 polled by the respondent. Twenty two votes were declared invalid. In the election petition filed by respondent No. 2 under Section 12-C of the U. P. Panchayat Raj Act the main grievance raised was that in fact the petitioners and respondent No. 2 had both secured equal number of votes but as a result of wrong counting the petitioner was declared to have secured one vote more than the election petitioner. The Sub-divisional Officer sent for the ballot papers, ballot paper account, the election return and on recounting which was done in the presence of the parties, it was found that the petitioner and respondent No. 2 had both secured 248 votes and 22 votes were invalid. The Sub-divisional Officer by his order dated 28-11-1974 held the election to be invalid and declared a casual vacancy following the decision of this Court in Raj Mongol Singh v. Sub-divisional Officer 1966 A. L. J. 279. The petitioner has assailed the correctness of the aforesaid decision.

Learned counsel for the petitioner contended that on the finding that both the contesting candidates had secured equal number of votes. The Tribunal ought to have drawn lot and decided the petition on that basis and that it was not legal for the Sub-divisional Officer to have set aside the election and declared a casual vacancy. The contention appears to be well merited. Rule 21-P of the rules framed under the Act provides for a contin gency where both the candidates secured equal number of votes. This rule provides that in such a situation the Nirvachan Adhikari shall decide between these candidates by lot and proceed as if the candidates on whom the lot falls had received an additional vote. In Raj Mongol Singhs case (supra) a learned single judge took the view that the power of drawing lot could be

exercised by the Nirvachan Adhikari alone and it was not open to the Election Tribunal while hearing an election petition under Section 12-C of the Act to resort to that provision as his jurisdiction was confined to the powers conferred under rule 25 of the Rules. Similar question came up for consideration before a Division Bench of this Court in Mani Ram v. Bhagwat Swarup A. I. R. 1949 Alld. 50. In that case the provisions of the U. P. Municipalities Act and the U. P. Municipal Election Rules were considered. Rule 50 of the U. P. Municipal Election Rules provided for drawing of lot where both the candidates secured equal number of votes. Dealing with the power of the Commissioner hearing an election petition the Bench observed that in a case of an equality of votes coming into existence as a result of the correction made by the Commissioner in rejecting votes improperly admitted or admit ting votes improperly rejected he can direct that a lot be drawn in the pre sence of the District Magistrate in accordance with Rule 50. Dealing with the ambit of power under Section 25 (2) (b) of the U. P. Municipalities Act the Bench observed that provision does not debar the Commissioner from taking such initial steps as may be necessary to declare a candidate to have been duly elected. A Commissioner is, in a sense a Court of Appeal and as a Court of appeal he would normally have the same powers as the trial Court (Returning Officer) unless there is something in the Act or in the Rules to take away that power. The same question again came up for consideration before a Bench of this Court in Trilok Chand v. The Election Tribunal and another 1959 A. LJ. 203. This was also a case under the U. P. Municipalities Act. After analysing the provisions of the U. P. Municipalities Act and Rules the Bench observed that the election Tribunal has power to draw lot when it comes to the con clusion that the two rival candidates have secured an equal number of votes at the el