V.D. Bhargava, J. - (1.) THIS is a petition under Articles, 226 and 227 of the Constitution filed by one Kartar Singh, who was a candidate for the Pradhanship of the Gaon Panchayat of village Pherupur Ram Khere, Pargana Jwalapur, district Saharanpur. The election for the Pradhanship was held on 17 -12 -1955 and there were three candidates for the same, Petitioner, being one of them. The other two candidates were. Budh Singh and Mansukh. According to the affidavit filed in support of the petition, one Balbir Singh was appointed by the Returning Officer as the presiding Officer for the polling in ward No. 1. On votes being cast, it is alleged by the Petitioner that, he had got 184 votes while Mansukh got 136 and Budh Singh got 101 votes. Soon after, the Presiding Officer went to Sri Mahendra Singh, Assistant Returning Officer, who was present at the polling booth of ward No. II and gave him the polling returns of ward No. I for the elections of the members and the Pradhan at about 2 P.M. on 17 -12 -1955. It is further alleged that Mahendra Singh was not present at the time of the election in ward No. I. Thereafter the result of ward No. I was not declared and on the inspection of the file it was disclosed that Sri Mahendra Singh, Assistant Returning Officer, gave a false report dated 19 -12 -1955, for necessary action and orders to the Election Officer, Panchayat Raj, Saharanpur and that report, it was alleged, was to the effect that Kartar Singh had obtained 84 votes but instead of 84 votes 188 votes had been written. This matter it appears was referred to the Director of Elections at Lucknow, who by his order, acting under Rule 16A of the Panchayat Raj Act, ordered a fresh election.
(2.) IT is contended, on behalf of the Petitioner that neither the Director of Elections nor the Returning Officer had any jurisdiction in the present case to act under Rule 16A. It was further contended that according to the report of the Election Officer the case was not covered by Rule 19F, under Which it might have been open to the Returning Officer to set aside the election. For this purpose the Petitioner relies on Annexure 3 of the Counter Affidavit filed on behalf of the opposite parties. The only provisions under which an election can be set aside is by way of election petition. It may also be that in case it is found that 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 lost, the election to which such return relates may be declared void. That is what Rule 19F provides. But according to the case of the opposite parties it was not a case covered by 19F. In the circumstances, the only course open to the Returning Officer was to declare the results and if there had been any irregularity it should have been challenged by a regular election petition. If a regular election petition is filed it would be open both to the Petitioner and the opposite parties to show their respective cases but in the present case the whole result has been withheld only on the report of Sri Mahendra Singh, Assistant Returning Officer. According to the affidavit filed by the Petitioner Sri Mahendra Singh was not present at the time when the polling was taken in ward No. I. No counter affidavit has been filed by Mahendra Singh to show that he was actually present. An affidavit has been filed on behalf of the opposite parties by one Arjun Das Who is a clerk in the District Election Office, (Panchayat) District Saharanpur and it is clear that he was not present at the time when this election took place. In paragraph 6 of the counter affidavit, he says that the Assistant Returning Officer was present at the time of the polling and he noted that Kartar Singh had obtained 84 votes but the Presiding Officer increased the number of votes in case of the Petitioner to 184, but by clerical error he has noted '184' as '188' in his report dated. 19 -12 -1955. It was further alleged that the Polling Officer was not recording votes on proper forms but recording on more slips or paper. This paragraph has been sworned by the deponent on information received from the record of the case. The report of Mahendra Singh has no doubt; been filed as Annexure I to this counter affidavit, which shows that the Presiding Officer had increased such votes within his presence but it is surprising, why did he not object at that very moment, if he was present. Still more surprising fact is, that though this increase in the votes, was done on 17 -12 -1955, yet the report was submitted as late as 19 -12 -1955. The Presiding Officer was acting under the Returning Officer and he should have directed him then and there to record it properly on the proper forms and not on slips of paper and also to record proper and correct votes. In any event, it is not necessary for me to give a finding whether that report was a correct report or not, because at this stage without actual evidence; being taken no finding can be arrived at.
(3.) I am concerned whether the Director of Elections or the District Election Officer or the Returning Officer had any right to order a fresh election under Rule 16A. 'R. 16A is for the purpose of Superintendence, control and direction of conduct of the election.' It is not for the purpose of coming to a conclusion whether an election has properly been done or not. This power can only be exercised before the election has taken place or if any impropriety is done during the election. But if the election is complete, there is no question of any superintendence, control or direction of conduct of the election. Therefore, I am of opinion that Rule 16A does not empower any authority to set aside an election which has already been held.;