- (1.) S. U. Khan, J. Heard learned Counsel for the parties. This First appeal under Rule 49 of U. P. Kshetra Panchayat (Election of Pramukhs and Up-Pramukhs and Settlement of Election Dispute) Rules, 1994 has been filed by the winning candidate whose election has been set aside by the impugned judgment and order passed by District Judge, Hathras in Election Petition No. 2 of 2006 Smt. Meena Devi v. Brajesh Kumar. The dispute relates to the election of Block Pramukh, Kshetra Panchayat Sahpau District Hathras. Total 54 voters cast their votes. According to the final result declared, Brajesh Kumar obtained 27 votes, Smt. Meena Devi obtained 26 votes and one vote was declared invalid. The elec tion petition was filed mainly on the allegation that after completion of counting both the parties were declared to have obtained equal number of votes i. e. 27 each and Assistant Returning Officer (A. R. O.) who was B. S. A. (Basic Shiksha Adhikari) indicated that result would be declared on the basis of lottery. However, meanwhile A. R. O. received a phone call and thereafter he manipulated an addi tional straight line in one vote of Smt. Meena Devi and thereafter declaring the said vote invalid, declared Brajesh Kumar elected by one vote. Original ballot papers were summoned by the learned District Judge. The learned District Judge pointed out that one line parallel to the (1) indicated by the voter in the ballot paper was drawn in different ink to make the said vote invalid. I have also perused the said ballot paper. There is absolutely no doubt that the ink is different. The main question is as to who did it and its effect. Before entering into the merits of the appeal in detail it is essential to note that the election has been declared invalid by the impugned judgment only on the ground that manipulation in the ballot paper was done by A. R. O. There is no finding that inspite of the additional line in the ballot paper, the vote still remained valid has not been discussed in the impugned judgment. During the course of the arguments of learned Counsel for the appellant when he opened his argument regarding the aforesaid aspect I called upon learned Counsel for the respondent to enquire as to whether this point was taken before the Court below and whether he would be pressing this point or not. Learned Counsel for the respondent categorically stated that even though he was very much interested to press the said point as in his opinion favourable decision on this point alone could culminate in the judgment in favour of his client, however, as this point was not raised before the Court below hence he was handicapped in pressing the said point.
(2.) HOWEVER, when learned Counsel for the respondent started his arguments after the conclusion of the argument of learned Counsel for the appellant he did dwell upon this aspect also. Rule 26 of the aforesaid Rules of 1994 deals with the situation in question. The said Rule 26 is quoted below: "26. Procedure at the counting.- (1) As soon as the poll is closed the Returning Officer shall, in the presence of the contesting candidates and the members who may be present, proceed to count the votes. (2) The Returning Officer shall open the ballot box and shall- (a) count the number of ballot papers taken out therefrom and record it in a statement; (b) scrutinise the ballot papers and separate those which in his opinion are valid from those which in his opinion are invalid endorsing on the latter the word "rejected" with reasons for such rejection; and (c) arrange all the valid ballot papers in parcels according to the first preference recorded for each candidate. (3) A ballot paper shall be rejected as valid on which- (a) the number 1 is not marked; or (b) the number 1 is marked opposite the name of more than one candi date or is so marked as to render it doubtful to which candidate it is intended to apply; or (c) the number 1 and some other numbers are marked opposite the name of the same candidate; or (d) any mark is made by which the voter may afterwards be identified. " In the Election petition in paragraph 6 it was mentioned that petitioner was challenging the election of the respondent upon two grounds. Ground No. (b) is quoted below: "because there was improper rejection of petitioner's one ballot paper which materially affected the result of the election. "
(3.) IT may be mentioned that first ground was regarding disqualification of the respondent. The said ground has not been argued in this appeal. It may be mentioned that for the election of Block Pramukhs, elected members of Kshetra Panchayat are the voters. Kshetra Panchayat in question contains 54 wards hence 54 elected members of the said wards were voters for the election in question. Paragraph 29 of the election petition is quite relevant and is quoted below: "that after the polling was over at 3 P. M. the counting of votes was done. For the purposes of counting of votes only the contesting candidates were allowed to remain present at the counting place. Therefore, the petitioner, the respondent and two candidates for Senior Up-Pramukh namely Rohtash son of Rajan Singh and Usha Devi wife of Netra Pal Singh and two candidates for Junior Up-Pramukh namely Dinesh Kumar son of Lekh Raj and Sheela Devi wife of Suresh Chand were present at the time of counting of votes. ";