Gulati, J. - (1.) THIS is an appeal by Chedda lal, whose writ petition has been dismissed by the Hon'ble S. N. Dwivedi, J.
(2.) THE appellant and respondent Nos. 3 and 5 contested the election to the office of the Pradhan of Gaon Sabha Kuchela. The appellant secured 684 votes, the respondent No. 3 secured 679 votes, the respondent No. 4 got 13 votes and respondent No. 5 obtained 16 votes. The appellant was declared elected by the Returning Officer. Respondent No. 3 filed an election petition on the ground amongst others that certain valid votes of his were wrongly rejected and cer tain invalid votes of the appellant were wrongly counted by the Returning Offi cer. The election petition filed by res pondent No. 3 came before the Judicial Officer, who recorded evidence led by the parties. The ballot papers which were kept in a sealed cover by the Re turning Officer were sent for by him for inspection and recounting. Before, how ever, the Judicial Officer pronounced the judgment, the case was transferred to the Sub-Divisional Officer for trial, pre sumably on the apprehension that a Judicial Officer had no jurisdiction to decide an election petition. On an application being made by respondent No. 3, the Sub-Divisional Officer exa mined the ballot papers and came to the conclusion that three ballot papers which should have been counted in fav our of respondent No. 3 had been wrongly rejected by the Returning Offi cer and that eleven ballot papers which should not have been counted in favour of the appellant- had been wrongly counted for him. Accordingly he added three votes to the total votes of the respondent No. 3 and deducted eleven votes from the total votes secured by the appellant. In this way the Sub-Divisional Officer found that the ap pellant had secured 673 votes while res pondent No. 3 had secured 682 votes. Accordingly the Sub-Divisional Officer set aside the election of the appellant and declared a casual vacancy. The appellant challenged the order of the Sub-Divisional Officer by means of a writ petition which has been dismissed by Hon'ble Dwivedi, J. Hence this Special Appeal. Only one point has been urg ed by Sri V. N. Khare, who appears for the appellant. His submission is that one of the contentions raised before the Sub-Divisional Officer was that the bal lot papers had been tampered with sometime during the interval between the first counting by the Returning Officer and the recounting by the Sub-Divisional Officer. In support of this contention he had relied upon the fol lowing four circumstances:- "(1) No argument was advanced on behalf of the third respondent before the Judicial Officer that certain ballot papers were wrongly rejected for him and that certain ballot papers were wrongly counted for the petitioner; (2) The Returning Officer, who was the Block Development Officer, was cross-examined neither before the Judi cial Officer nor, before the Sub-Divi sional Officer by the third respondent on the question of wrong counting of ballot papers; (3) The third respondent has said nothing in his statement about the wrong counting of ballot papers and, (4) The envelopes did not bear the signatures of the Block Development Officer or the Judicial Officer." He goes on to argue that the Sub-Divisional Officer rejected this conten tion on the ground that the seals on the envelopes containing ballot papers were found intact. He did not take into con sideration any of the four circumstances pointed out by the appellant. The find ing of the Sub-Divisional Officer that the envelopes containing the ballot papers had not been tampered with, according to the learned counsel, suf fers from a patent error of law. The learned Single Judge has found that the circumstances Nos. 2 and 3 were not pointed out to the Sub-Divisional Officer at any time, while the matter was pending before him. In other words the Sub-Divisional Officer was never called upon to consider two out of four circumstances.
(3.) AS regards the remaining cir cumstances they were mentioned in the application filed by the petitioner, but the order of the Sub-Divisional Officer does not show that he considered them. The learned Single Judge, however, has expressed the opinion that the fact that the seals on the envelopes were found to be intact was a piece of evidence upon which the finding of the Sub-Divisional Officer could be based. The finding that the ballot papers had not been tampered with, therefore, cannot be said to be without evidence. A find ing of fact which is not based upon evi dence can be said to suffer from a patent error of law, but a finding which is based upon some evidence does not suffer from any such infirmity, even though some other evidence might not have been considered. With respect we find that the learned Single Judge has set out the point rather too widely. It is not in every case that where some material evidence has not been consi dered no question of law arises.;