JAGAT NARAYAN, J. - (1.) THIS is a petition under Art. 226 of the Constitution by one Hardeva Ram whose election to the office of Sarpanch has been set aside by the Tribunal on an election petition filed by one Balwant, father of the defeated candidate Sheonarain.
(2.) THE election took place on 1-1-65. According to the result which was announced after counting, on the day of polling Hardeva polled 592 and Sheo Narain polled 452 votes. THE Tribunal has set aside the election on 3 grounds. THE first ground is that the election was commenced at 9. 30 A. M. , instead of 8 A. M. This was a non-compliance with the provision of the rules and under rule 70 (d) (iv) of the Rajasthan Panchayat & Nyaya Panchayat Election Rules, 1960. THE election could not be set aside unless it was proved that the result was materially affected thereby. THEre is no evidence to show how many voters went away and did not return on account of the delay in the commencement of the polling. Nor is there any evidence to show for whom these voters would have voted. In this connection, the decision of the Mysore High Court in Bugga-veti Krishnayya vs. Lakshmikantamma (1) may be referred. The second ground is that in the middle of the poll, the Returning Officer left the polling station, as he had suddenly been taken ill and returned after two hours and the polling was carried on in his absence by the polling officers. It is the duty of the Returning Officer to conduct the election. It is not necessary for him to be present throughout when the polling is taking place. If he has to go away from the polling station, he can entrust his supervisory function to the polling officers and other staff appointed under sub-rule (1) of Rule 22. This rule runs, as follows - 22. Polling Officers and other staff - (1) The Collector or any other officer authorised by him shall appoint, by name or by virtue of office, as many persons as there are polling booths established in a ward in which a poll is to be held, to act as polling officers and such other staff as he thinks necessary to assist each Returning Officer. (a) Provided that if a Polling Officer or any other member of the staff is absent from polling station, or polling booth the Returning Officer may appoint any person to act in place of such absentee and inform the Collector accordingly. (b) Provided further that no person who has been employed by or on behalf of, or has been otherwise working for a candidate in or about the election, shall be appointed as Polling Officer or a member of the staff. (2) The polling officers and other staff appointed under sub-rule (l) shallperform such duties and exercise such powers as are imposed and conferred on them by these rules, or as are entrusted to them by the Returning Officer. The evidence on record shows that the Returning Officer entrusted his supervisory function to Shri Madan Lal, one of the polling officers, before going to Jhunjhunu. The polling which took place during the absence of the Returning Officer from the polling station is therefore not invalid. On this point also the decision of the Tribunal is erroneous. The third ground on which the election was set aside by the Tribunal is that the counting of votes and declaration of the result was not done by the Returning Officer, In Para 3 of the petition it was alleged that the Returning Officer neither counted the votes nor declared the result but that one Madanlal, a member of the polling party, counted the votes and declared the result illegally and that these proceedings are void. Earlier in Para 2 of the petition, it was stated that when polling was going on, the Returning Officer left the polling station and went to Jhunjhunu. The reply of the petitioner to Para 3 was that the allegations made in it were not admitted and that reply to it was contained in the reply to Para 2. In Para 2 it was stated, - "the Returning Officer fell ill and he entrusted the work of election to his assistant Madanlal and informed the Collector, Jhunjhunu also about it. At this the Collector, Jhunjhunu sent his nominee Shri Kothari who supervised the work of polling and got the votes counted in his presence and got the result of election declared in his presence. " From this reply, it is clear that the Returning Officer neither counted the votes nor declared the result. In view of the above pleading it was not necessary for the petitioner to have proved the allegation contained in Para No. 3 of his petition. However Tribunal framed the following issue No. 3 and will be deemed to have required the petitioner to prove the allegation by evidence: - "whether the Returning Officer neither counted the votes nor declared the result of the election which was done by Shri Madanlal Polling Officer and whether these proceedings were all illegal?" Both parties produced evidence on this issue. The Tribunal failed to discuss this evidence, but I have been taken through it by the learned counsel for the parties. It appears that the Returning Officer fell ill and went to Jhunjhunu and returned from there in the after-noon before the close of the poll. Further that the Returning Officer was not present in the room in which counting was done by Madan Lal and the result sheet was signed by Madanlal as Returning Officer and it was he who declared the result. In Balwant's statement, it is written at one place that the Returning Officer did the counting in his presence. This appears to have been written wrongly. A reading of his whole statement goes to show that he was trying to support the case put forward by him in his petition. Harisingh P. W. 6 who was on duty stated that the magistrate came and asked Madanlal to do the counting and Manganlal then did the counting. Balwantram stated in his examination-in-chief that Madanlal counted the votes and declared the result of the election. But in cross-examination he stated at one place that perhaps Madan La l counted the votes, and at another place that he left at 2 P. M. He also stated that he could not say whether any magistrate was present or not. The election petitioner filed a certified copy of the result sheet which he obtained on 19-4-65. This certified copy goes to show that the original did not bear the signatures of the Returning Officer on that date. The original result sheet was requisitioned in this Court. The main result sheet on the prescribed form is in Hindi. It has been signed by Shri M. L. Sharma (Madanlal) as Returning Officer. The result sheet now bears the signatures of Shri Ram Swaroop dated 1-1-65 also at another place but these signatures were obviously affixed after 19-4 65. If he had been present in the room where counting was done he would have signed the result at the place where the word Returning Officer is printed. It is there that the Returning Officer is supposed to sign the result-sheet. From the evidence on record it is thus abundantly clear that although the Returning Officer returned to the polling station, he was not present in the room in which counting took place and the result was declared. The counting was done by Shri Madanlal and the result war also declared by him. It was he who signed the result sheet as Returning Officer. Rule 38 (3) of the Rajasthan Panchayat and Nyaya Panchayat Election Rules, 1940, lays down that votes shall be counted by or under the supervision of the Returning Officer and Rule 41 lays down that when the counting of votes has been completed, the Returning Officer shall declare the candidate, who has secured the largest number of votes as a result of the poll, to be elected. This rule also lays down that the Returning Officer shall prepare and certify a return of the election in Form IV. The above mandatory rules were not complied with. On behalf of the petitioner it is contended that these duties could also be entrusted by the Returning Officer to a polling officer or other staff under rule 22 (2 ). I am of opinion that the work of counting which includes scrutiny must be done under the supervision of the Returning Officer as it is he alone who is competent to reject a ballot paper under rule 39. This duty cannot be delegated by him to any one else. I accordingly hold that the counting of votes and the declaration of result in this case is void as the counting did not take place under the supervision of the Returning Officer and the result was not declared by him. I accordingly modify the order of the Tribunal and direct that Shri Ram Swaroop shall count the votes and declare the result after giving notice to the parties. Hardeva Ram has not yet been elected and he shall relinquish charge of the office of Sarpanch forthwith to the Up Sarpanch. The election petition is decided as indicated above. In the circumstances of the case, I leave the parties to bear their own costs. The sealed packet containing the ballot papers shall be sent to the Collector, jhunjhunu. It should be properly packed so that the sealed envelope does not get torn. . ;