- (1.) This appeal by special leave is directed against the Judgment of the Allahabad High Court dismissing the writ petition under Article 226 of the Constitution filed by Dhara Singh, appellant before us. Dhara Singh had prayed for a writ, order or direction in the nature of certiorari quashing the judgment of the District Judge, Meerut, dismissing the election petition filed by Dhara Singh challenging the election of Pitam Singh to the office of Pramukh, Block Jani, on July 8, 1962.
(2.) Two points were raised before us first, that the District Judge had no jurisdiction to count ballot paper No. 0045 in favour of Pitam Singh and that the returned candidate had no right to claim that ballot papers not already counted in his favour should be so counted; and secondly that, at any rate, the District Judge erred in law in counting ballot paper No. 0045 in favour of Pitam Singh.
(3.) The relevant statutory provisions are as follows : The election is governed by the provisions of the U. P. Kshettra Samitis (Election of Pramukhs and Up-Pramukhs and Settlement of Election Disputes) Rules, 1962 - hereinafter called the Rules. Rules 37, 39, 40, 43 and 44 are as follows : "37. Relief that may be claimed by the petitioner. - A petitioner may claim either of the following declarations - (a) that the election of the returned candidate is void; (b) that the election of the returned candidate is void and that he himself or any other candidate has been duly elected. 39. Recrimination when seat claimed. - When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election. 40. Procedure. - (1) Except so far as provided by the Act or in these Rules, the procedure provided in the Civil Procedure Code, 1908, in regard to suits, shall in so far as it is not inconsistent with the Act or any provisions of these Rules and it can be made applicable, be followed in the hearing of the election petitions : Provided that - (a) any two or more election petitions relating to the election of the same person may be heard together; (b) the Judge shall not be required to record or to have recorded the evidence in full but shall make a memorandum of the evidence sufficient in his opinion for the purpose of deciding the case; (c) the Judge may, at any stage of the proceedings require the petitioner to give further cash security for the payment of the costs incurred or likely to be incurred by any respondent; (d) for the purpose of deciding any issue the Judge shall be required to order production of or to receive only so much evidence, oral or documentary, as he considers necessary; (e) no appeal or revision shall lie on a question of fact or law against any decision of the Judge; (f) the Judge may review his decision on any point on an application being made within fifteen days from the date of the decision, by any person considering himself aggrieved thereby; (g) no witness or other person shall be required to state for whom he has voted at an election. (2) The provisions of the Indian Evidence Act, 1872 (Act No. 1 of 1872) shall be deemed to apply in all respects to the trial of an election petition. (3) Before the hearing of an election petition commences or before the final hearing takes place, the petition may be withdrawn by the petitioner or the petitioners, as the case may be, by making an application to the Judge requesting for the withdrawal of the petition and upon the making of such an application the petition shall stand withdrawn and no further action shall be taken for its trial. 43. Findings of the Judge. -(1) If the Judge after making such inquiry as he deems fit finds in respect of any person whose election is called in question by a petition, that his election was valid he shall dismiss the petition as against such person and award costs at his discretion. (2) If the Judge finds that the election of any person was invalid he shall either- (a) declare a casual vacancy to have been created, or (b) declare another candidate to have been duly elected and in either case may award costs at his discretion. 44. Grounds on which a candidate other than the returned candidate may be declared to have been elected. - If any person who has lodged an election petition has, in addition to calling in question the election of the returned candidate. claimed a declaration that he himself or any other candidate has been duly elected and the Judge is of the opinion that in fact the petitioner or such other candidate received a majority of the valid votes, the Judge shall after declaring the election of the returned candidate to he void, declare the petitioner or such other candidate as the case may be, to have been duly elected : Provided that the petitioner or such other candidate shall not be declared to be duly elected if it is proved that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election.";