V.D.Bhargava, J. - (1.) This an application under Article 226 of the Constitution challenging the Sub-Divisional Officer setting aside the election and declaring Opposite Party No. 1 as the duly elected candidate.
(2.) The petitioner was a candidate for post of Pradhan of Gaon Sabha Bhithi Newada, tahsil Shahabad, District Hardoi and opposite-party No. 1 was also a rival candidate. The election was held on 19th of December, 1955 and there were two polling stations. One was at Bhithi and the other was at Newada. It was alleged that in respect of the polling station of Newada there was a note of the Assistant Returning Officer to the effect that the polling was misleading (Bhramatmak)...[VERNACULAR TEXT OMITTED]... Instead of ordering re-election the Petitioner had been declared elected on 4th January, 1956. Later on 16th January, 1956 Opposite Party No. 1 filed an election petition under Section 12-C of the U.P. Panchyat Raj Act questioning the election inter alia on the ground that the votes had been tampered with. The learned Sub-Divisional Officer came to the conclusion that there had been a tampering but instead of ordering a re-election he declared Opposite party No. 1 as elected.
(3.) Rule 19-F of the election rules framed under the U.P. Panchayat Raj Act provides:- (1) If at any election any polling return is taken out of the custody of the Returning Officer or of any Presiding Officer, or is in any way tampered with or is either accidentally or intentionally destroyed or lost, the election to which such return relates shall be void. (2) Whenever the polling at any polling place shall become void under Sub-rule (1), the Returning Officer shall, as soon as may be, after the act or event causing such voidance has come to his knowledge, report the matter to the District Magistrate and shall, with his previous approval, appoint a day for the taking of a fresh poll at such polling place and fix the hours during which the poll will be taken". It was contended on behalf of the Petitioner that once the Sub-Divisional Officer has come to the conclusion that there had been a tampering, he had no other option but to order a fresh election with the approval of the District Magistrate. There can be no doubt that the finding of the Sub-Divisional Officer is to the effect that there had been a tampering.;