N. N. Mithal, J. - (1.) PETITIONER has challenged an order passed by respondent No. 1 ordering repoll for the election of Pradhan of Gaon Sabha Delauhan of Block Meja in Tehsil Meja, district Allahabad. The facts relevant for our purposes are that an election of Pradhan took place on 5-8-1988 and counting was done on 6-8-1988. In the said counting, the petitioner secured 212 votes while respondents 4, 5 and 6 polled 159, 158 and 91 votes respectively. Before the result of the election was declared, on a representation made by respondent no. 4 and on the basis of a report given by respondent no. 2 which is Annexure I to the petition, the respondent no. 1 directed that a fresh election should take place on 10-8-1988. A copy of this order is Annexure 2 to the counter-affidavit. Substantially this order is under challenge in this petition.
(2.) PETITIONER's contention is that repoll could not have been ordered for the reasons given in the report or in the representation made by respondent no. 4. In our opinion, the contention is well founded. Fresh poll can be ordered only under rule 21-H of the U. P. Panchayat Raj Rules, 1947. The said Rule is as under : "21-H. Fresh poll in case of destruction, etc. of ballot boxes-(l). If at any election any ballot box is unlawfully taken out of the custody of the Nirvachan Adhikari or of any Matdan Adhyaksh, or is in any way tampered with, or is either accidentally or intentionally destroyed or lost, the polling at the election to which such ballot box relates shall be void. (2) Whenever the polling shall become void under sub-rule (1) the Nirvachan Adhikari shall as soon as practicable after the act or event causing such violance has come to his knowledge, report the matter to the District Magistrate and shall with his previous approval, appoint a day for the taking of a fresh poll and fix the place at which and hours during which the poll shall be taken and notify the same in such manner as may be specified by the District Magistrate, (3) In every such case as aforesaid the Matdan Adhyaksh shall take a fresh poll and the provisions of this chapter shall apply to every such fresh poll as they apply to the original poll." From a perusal of the rule, it will be clear that fresh poll can be ordered only where Nirvachan Adhikari is satisfied that any ballot box was unlawfully taken out of his custody or of any Matdan Adhyaksh or had been tampered with or is either incidentally or intentionally destroyed. A fresh poll can also be taken recoruse to under rule 21-L (c) if at the time of counting it is found that any ballot box had been tampered with or destroyed or lost. However, in that event, the Nirvachan Adhikari shall not proceed with counting of votes. This rule, therefore, will apply when, before counting starts, the Nirvachan Adhikari finds any of the ballot boxes to be tampered with, distroyed or lost. But once the counting process begins, this rule cannot be availed of for the purposes of ordering a fresh poll. In the instant case, the complaint made by respondent no. 4 was only to the effect that 15 ballot papers have been removed from the ballot box. It is also complained that the ballot boxes had been opened even before the respondents had reached the place of counting. According to the procedure provided for counting in rule 21-L on the date and at the time and place appointed under Rule 21-1 the Nirvachan Adhikari will proceed with the counting in the manner laid down in the said rule. The representation made by the respondent (Annexure CA-I) does not disclose that they had reached the place of counting before the time fixed for the start of counting. The grounds mentioned in the representation for seeking repoll was, therefore, not within the purview of either Rule 21-H or Rule 21-L (c). Apart from the above, even the report submitted by the Nirvachan Adhikari on 6-8-1988, a copy of which is Annexure I to the petition, only states that instead of 915 ballots, 956 ballots were found in the boxes. This again cannot be a ground for ordering fresh poll. Rule 21-H can only apply at the stage before the counting begins. From the above, it is clear that the respondent no. 1 had no jurisdiction to order fresh poll either under Rule 21-H or under Rule 21-L of the Rules.
(3.) IN the result, the order dated 8-8-1988 directing a fresh poll for the election of Pradhan of Gaon Sabha Delauhan was clearly without jurisdiction and must be quashed. The petition accordingly succeeds and the order dated 9-8-1988 directing fresh poll is hereby quashed. Respondents 1 to 3 are directed to declare the result of the election of Pradhan of village Delauhan, Tehsil Meja, District Allahabad held on 5-8-1988 in accordance with the Rules. Costs easy.;