Arun Tandon - (1.) -Heard Shri Ashok Khare, senior advocate on behalf of the petitioner, Shri Shashi Nandan, senior advocate on behalf of respondents.
(2.) COUNSEL for the parties agree that the writ petition be disposed of at this stage itself without calling for further affidavits. Petitioner Reeta Yadav was elected as the Block Pramukh, Kshetra Panchayat Sadad, district Ghazipur in the elections held in the month of February, 2006. Smt. Geeta Yadav the other contestant filed election petition before the District Judge, Ghazipur. The petition has been numbered as Case No. 1 of 2007. In paragraphs 4 to 6 of the election petition it has been stated that 10 first preference votes which were caste in favour of the election petitioner were wrongly declared invalid. It is admitted on record that the election petitioner has lost by a margin of 7 votes only. If these 10 votes of first preference are counted in her favour the result would be materially affected and the election petition would be declared elected. In the election proceedings before the Election Tribunal, statement of Santosh Kumar Yadav, the husband of the election petitioner has been recorded. The pleadings of paragraph 4 to 6 of the petitioner have been reiterated in the oral testimony and it has been explained that there is no issue qua the first preference recorded in the ballot paper these ballot paper have been declared invalid only because of some overwriting etc. qua the 2nd and 3rd preference only.
(3.) ON the pleadings and the statement on record, the Election Tribunal by means of 14.5.2007 has declared that the packets containing valid as well as invalid ballot papers may be opened. This order of the 14.5.2007 has been challenged in the present writ petition. Counsel for the petitioner Shri Ashok Khare, senior advocate submits that in view of Rule 26 (3) of the U. P. Kshetra Panchayat Raj Act, 1994 the ballot paper for exercising preferential votes is one and, therefore irregularities in respect of 2nd and 3rd preference would render the entire ballot as invalid. The first preference recorded cannot be segregated so as to be taken into account. It is further stated that in view of the Full Bench of this Court reported in 1985 UPLBEC 317, fishing and roving enquiry is not permissible, therefore the order passed is legally not justified.;