B. Amit Sthalekar, J. - (1.) The petitioner in the writ petition is seeking quashing of the order dated 30.12.2017 whereby the Election Tribunal has rejected the application of the petitioner dated 17.11.2016 for summoning of counting supervisors for recording their statements.
(2.) Briefly stated the facts of the case are that an election for the post of Gram Pradhan of Gram Sabha Pindara, Pargana Kulasala, Block and Tehsil Pindara District Varanasi was notified on 7.11.2015 alongwith Gram Sabha Elections across the State of U.P. The election prgoramme was as under: JUDGEMENT_80_LAWS(ALL)3_2018_1.html
(3.) 11 persons including the petitioner and respondents no. 2 to 11 contested the election for the post of Pradhan in the reserved female category. It is stated that total ballot papers were 6402 out of which 105 were declared invalid and valid ballot papers were 6297. The petitioner was declared a winner by two votes defeating the respondent no. 2 Chhaya. The respondent no. 2 is stated to have demanded recounting which was allowed by the returning officer but the result remained unchanged. Thereupon the respondent no 2 filed an election petition no. 6 of 2016 alleging that she had received 2616 votes but the returning officer has illegally not counted 28 votes polled in her favour and had illegally declared 42 votes as invalid. The election petition was contested by the petitioner and a written statement was filed by her denying the allegations made therein. It is stated that during the pendency of the election petition, the Prescribed Authority by an order dated 10.11.2016 directed summoning of counterfoils of ballots from booths 226 to 240, report diary and election returns prepared in various prescribed format by respondent no. 12/counting supervisor. The petitioner then filed a recall application also dated 10.11.2016 which was rejected by order dated 30.1.2017. Being aggrieved by the order dated 10.11.2016 and 30.1.2017 the petitioner filed civil misc. writ petition no. 15862 of 2017 (Smt. Phula Devi Vs. State of U.P. and others) but the same was dismissed by the High Court by judgement and order dated 13.11.2017. Under the orders of the Election Tribunal dated 10.11.2016 the various returns in their formats showing the time of voting and counting were brought on record. It is stated that the returns of the election in Form 4 were summoned in which it was found that there was overwriting and cuttings which created a suspicion in the mind of the petitioner as to the genuineness of the information recorded therein. The election petition was thereafter transferred to the S.D.M. Sadar, Varanasi and renumbered as Election Petition no. 31 of 2017 (Chhaya Vs. Phula Devi and others). It is stated that on 20.12.2017 the petitioner submitted an application before the Prescribed Authority for summoning the counting supervisors for the purposes of verification of the entries in the election returns in Forms 4, 5 and 6 and to rebut the presumption of genuineness of the information recorded therein which arises under Section 79 of the Indian Evidence Act, 1872 with regard to a document certified by a public servant. It is stated that no objection was filed by the respondents no. 2 to 11 to the petitioner's application but nevertheless by the impugned order respondent no. 1 S.D.M. Sadar has rejected the petitioner's application.;