B.S. Verma, J. - (1.)THIS writ petition has been preferred for quashing the order dated 15 -11 -2003 passed by the District Judge, Almora in Election Petition No. 1 of 2003 (Annexure No. 7 to the writ petition), whereby the recounting of ballot papers was directed in presence of learned Counsel for both the parties in presence of the Tribunal as mentioned in the impugned order.
(2.)RELEVANT facts rise to the present writ petition in brief are that the Petitioner as well as the Respondent No. 2 and one Mohan Singh contested the election of Members of District Panchayat in the year 2003 from 43 - Bhasori Zila Panchayat Constituency, Almora and the Petitioner is the returned candidate and a certificate to that effect was issued by the Returning Officer on 1 -4 -2003. The said election has been challenged before the District Judge, Almora by Respondent No. 2 Diwan Singh Bhaisora on the ground that the brother of the Petitioner, namely Deoki Nandan Joshi, who is a teacher in Government Inter College Danya, had participated in the counting of votes. When the Respondent No. 2 came to know of this fact, he made an oral request to the Assistant Returning Officer and a written request was also made in that regard before the declaration of result. The Respondent No. 2 also made a complaint to the District Magistrate Almora as well as the State Election Commissioner Uttaranchal on 341 -3 -2003 and request was also made for recounting of votes but to no avail. The grievance of the Respondent No. 2 is that the result was declared in favour of the Petitioner Ramesh Chandra Joshi due to undue influence of the brother of the Petitioner Deoki Nandan Joshi, who had participated in the counting of votes, which is against the Rules.
The Petitioner resisted the election petition and filed his written statement and denied the allegations made in the petition. In the additional pleas, it was stated that the allegations of para Nos. 3 and 5 were made on imagination and were concocted and false and frivolous ones. It may be mentioned that the Petitioner has nowhere denied that his brother Deokinandan Joshi had participated in the counting of votes on 30 -3 -2003 in Block Office Dholadevi.

(3.)AT the stage of evidence, the learned Tribunal summoned the ballot papers in sealed cover and the same were ordered to be kept in sealed cover in the custody of the Returning Officer. At the time of final arguments, learned Counsel for the election Petitioner (Respondent No. 2) submitted before the District Judge that few ballot papers, which were cast in favour of the Petitioner were counted in favour of the returned candidate and few other ballot papers, which were cast in favour of the election Petitioner were wrongly rejected as invalid. The request was opposed by the returned candidate on the ground that there is no provision to recount or inspect the ballot papers.
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