R. K. Gulati, J. - (1.) -Aggrieved by an interlocutory order dated 16th March, 1988, passed by Sub-Divisional Magistrate, Sadar, Agra (respondent no. 1) granting inspection of ballot papers and recount of votes on the application of respondent no. 3 pending trial and decision of the arbitration petition, the petitioner Ranvir Singh has filed this writ petition. The petitioner has sought a writ of certiorari, seeking quashing of the impugned order and a writ of mandamus directing the respondent no. 1 not to proceed with the inspection of ballot papers and recounting of votes which had been fixed for 2nd April, 1988.
(2.) WHILE admitting the petition on 28-3-1988 a Division Bench of this Court passed the following interim order :- " Issue notice. Meanwhile proceedings before the sole Arbitrator may go on but the ballot papers shall not be reopened and counting not done in pursuance of the order dated 16-3-1988 (Annexure 5 to the writ petition) ". Briefly stated, the facts giving rise to this writ petition are : there is a co-operative society known as Kshetriya Sahkari Samiti Ltd. Midhakur, which is registered under the provisions of the U. P. Co-operative Societies Act, 1965 (for short "the Act"). The election of the members of the Committee of Management of the aforesaid Society was held on 26-12-1987. The petitioner Ranvir Singh, and respondents no. 3 to 5, namely, Rajendra Singh, Bhagwan Singh and Udaivir Singh respectively were candidates for the office of Committee of Management from Midhakur Constituency. The petitioner secured 190 votes whereas respondent no. 3 secured 177 votes while Bhagwan Singh and Udaiveer Singh got 93 and 54 votes respectively. Sri Rajendra Singh (respondent no. 3) filed an arbitration petition under section 70/71 of the Act read with Rules 229, 230 and 444-C of the Co-operative Societies Rules, 1968 (hereinafter referred as "the Rules") challenging the election which had gone in favour of the petitioner. The arbitration petition was transferred for trial and decision by the District Magistrate, Agra, to the Sub-Divisional Magistrate, Sadar, Agra, the respondent no. 1 (hereinafter referred as the Arbitrator). The petitioner contested the arbitration petition and filed his written statement before the Arbitrator. After the oral evidence of Rajendra Singh, Udai Veer Singh and one Gulab Rai had been recorded, the Arbitrator issued summons to Election Officer for recording his statement fixing 15th February, 1988 as the date for that purpose. It appears, after the statement of Election Officer had been recorded, respondent no. 3 on the same day made an application before the Arbitrator for summoning the marked copy of the voter list and the sealed ballot papers in connection with the election in question and further prayed that the same may be inspected and recounting of votes may be done. The petitioner objected to the summoning of the election record and recounting of votes, by his application dated 8-3-1988. The Arbitrator, however, allowed the application for inspection and recount, by his order dated 16-3-1988, directing that the recounting of the ballot papers shall be done on 2-4-1988. It is against this order, the present writ petition has been filed and as already stated, the operation of the said order was stayed by this court by its order dated 28-3-1988.
(3.) WE have heard the learned counsel for parties and have perused the impugned order, from which it is evident that the Arbitrator ordered for recount because there were discrepancies between the total number of votes polled when compared with marked electoral roll, according to which 508 voters exercised their right to vote whereas the return filed by the Election Officer indicated that 532 ballot papers had been issued to the voters. At the time of counting of , votes, besides one ballot paper which had been cancelled by the Election Officer and sealed separately, 523 ballot papers were found in the ballot box. Thus, out of 532 ballot papers which were issued, 524 ballot papers were used by the different voters in casting their votes. There is no dispute between the parties on the facts and figures set out above. In the petition for arbitration and in the application for inspection as well as before us the case of the respondent no. 3 had been that the excess number of ballot papers representing the difference between marked electoral roll and the return filed by the Election Officer, were surreptitiously polled with the connivance of the Election Officer.;