- (1.) PALOK Basn, J. This writ petition has been filed by Balwant Singh with the prayer that respondents be commanded to resume the poll from the stage it was postponed and also that a mandamus should issue declaring Rule 31 of the Rules null and void and the added reliefs do not require any special mention at this stage.
(2.) THE facts lie in a narrow compass. THE petitioner Balwant Singh and three others, namely, Smt. Raj Bala, Sri Rajendra Singh and Smt. Suman were the four candidates for the Office of Adhyaksh Zila Panchayat, Hardwar which was held on 22-5-1995. Bereft of the details of events which happened on 22-5-1995, the relevant fact to be stated is that the polling began and nine voters had already exercised their franchise when some commotion took place as a result of which a large crowd intervened, came inside the polling booth and the Returning Officer closed the polling and postponed it to a future date to be fixed. THE Returning Officer in his turn informed the State Election Commission. In paragraph No. 18 of the writ petition the specific averment of the petitioner is that he had sent a Fax message to the Election Commis sion and also to the Governor of Uttar Pradesh and that the said Fax message was despatched dated 1. 05 p. m. on 22-5-1995, a true copy of which has been filed as Annexure 11 to the writ petition. It transpires that by letter dated 27-5-1995 the Election Commission through its letter No. 1010 Ra.-Ni.-Aa.-Anu.-5/95 called upon the District Election Officer (District Magistrate) Hardwar to fix a date for repelling and intimate the Election Commission on priority basis the said date. THE aforesaid letter has been filed as CA-8 to the counter affidavit filed by one Sri R. V. Dinkar who was Assistant District Election Officer ID Hardwar in the Paochayat Elections of 1995. THE relevant averments concerning Annexure-CA 1 exist in paragraph No. 28 of the said counter affidavit which have been replied by the petitioner in paragraph No. 31 ot" h> 6 first rejoinder affidavit by a general statement that the averments in paragraph No, 28 of the counter affidavit are not admitted. With this factual background the petitioner rushed up to this Court through this writ petition on 30-5- J 995. After this writ petition was enter tained notice was issued to the opposite parities who were five in number being State of Uttar Pradesh through State Election Commissioner Uttar Pradesh, Lucknow, District Magistrate, Hardwar-Cum-Returning Officer, Sub-Divisional Magistrate-cum-Asstt. Returning Officer, Hardwar, Sri Bhagat Singh Verma, District Magistrate Hardwar-cum-Returning Officer and Sri Shashi Dhar Bhatt, Sub-Divisional Magistrate-cum-Assistant Returning Officer, Hardwar. During the pendency of this writ petition Rajendra Singh had moved an application for impleadment as opposite party No. 6. After hearing learned counsel for the parties the aforesaid applicant was permitted to argue in opposition through his counsel Sri G. C. Bhattacharya. Consequently, the impleadment application has to be allowed. Sri Ravi Kant, Advocate has appeared on behalf of the petitioner Balwant Singh and it must be said to his credit that he has not left a single point of fact or law uncovered during the course of his learned arguments. Sri Aditya Narain Singh has appeared on behalf of State Election Commis sion. It may be stated here that the stand of the State Election Commission is that repoll order means and should be interpreted to mean that fresh poll all together has to be held. The Standing Counsel Sri H. R. Misra and Sri C. K. Rai have appeared on behalf of the officials noted above. It may further be mentioned here that two counter affidavits, one by R. V. Dinkar and the other by Sri Shashi Dhar Bhatt, opposite party No. 5 have been filed to which two separate rejoinder affidavits have been filed. A detailed counter affidavit along with impleadment application of Rajendra Singh has also been filed to which a suitable reply has been given by the petitioner. Prolonged hearing on the arguments of Sri Ravi Kant and Sri O. C. Bhattacharya hat preceded this judgment in open Court. For short it may be mentioned here that though primary arguments shall be adverted to concerning the legal position, but this case should tarn on facts rather than on questions of law raised by the learned counsel for the petitioner.
(3.) SRI Ravi Kant, learned counsel for the petitioner vehemently argued that those nine votes which had already been polled should be retained and the maximum that is possible on the facts and circumstances of the present case is that the whole polling should be taken to be adjourned polling and, there fore, the votes to be cast on the adjourned date should be after those nine votes, i. e. , it should begin from 10th onward. It may be mentioned that it is not denied that there are only 16 member voters who will cast votes in exercise of their right to vote for the office of Adhyaksh, Zila Panchayat Hardwar. Readily it should be recorded here that these elections were htid under the provisions of U. P. Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 (for short, the Act) and that concerning election of two members the election petitions have been filed in which some interim orders have been passed and those voters had some rigor on the said exercise of their right. The aforesaid matter is neither being touched here nor should be adverted to because the election petitions which were pending then may be taken to challenge still further as the State Election Commissioner has informed the Court that those two election petitions have been dismissed. Therefore, no further observation requires to be made. It may be mentioned that regarding the state of affairs at the polling, reference has been made to the F. I. R. as also the detailed report of the Returning Officer by both sides counsel. Sri Ravi Kant argued that there is no prohibition in the Act or the Rules in adjourning the poll if there is some commotion, natural calamity or criminal activity. It is argued that unless the Returning Officer makes a specific report about tampering of the votes polled it will not be just or proper to interpret the adjournment of poll as an authority justifying repoll from the very beginning. In this connection attention of the Court was drawn to the guidelines issued by State Election Commission, copy of which has been filed as Annexure-CA7 to the counter affidavit of Sri R. V. Dinkar. In guidelines No. 5 it is stated that when the adjourned poll is recommenced, the voters be asked to cast their votes from the number after the last voter had exercised his franchise on the last date. It has further been provided in the said guidelines that though the voters who had already exercised their franchise shall not be permitted to vote a new or afresh, the concluding portion of guidelines No. 6 says that the Returning Officer should abide by the directions of the District Returning Officer concerning the rapolling and then follow the Rules and Regulations applicable. Sri Ravi Kant, relying upon those guidelines drew the attention of the Court to the letter of the Returning Officer addressed to the State Election Commission on 22-5-1995 and said that nine votes which had already been polled should be permitted to remain in the ballot boxes and voters from serial No. 10 onwards should be permitted to caste their votes. In this connection he has referred to the following paragraph of the aforesaid letter of the District Magistrate which, translated into English, would read as follows i "the circumstances which came to exist would justify the decision of the Asstt. Returning Officer/presiding Officer to stop the polling and I fully concur with the said decision. At the time when the polling had been stopped, out of 15 voters nine had cast their votes. The ballot-box etc. have been put under seal cover and then kept in the Treasury under double lock. " As stated the only controversy now is as to whether the aforesaid order dated 27-5-1995 should mean that polling has to commence from 10th voter onward or that it should include a repoll beginning from 1 to 16.;