JUDGMENT Dilip Gupta, J.
1. This application under Article 227 of the Constitution of India has been filed for setting aside the order dated 29.10.2007 passed by the Election Tribunal/Additional District Judge, Court No. 2, Etah in Election Petition No. 6 of 2006 by which the review application filed by the election petitioner-respondent No. 1 Israr Ahmad was allowed.
2. The dispute in the present application arises out of the election held for the post of Chairman/Nagar Palika Parishad, Soron, district Etah (hereinafter referred to as 'the Parishad'). The applicant Kailash Chandra was declared elected as Chairman of the Parishad. On 4.12.2006 Israr Ahmad preferred Election Petition No. 6 of 2006 under the provisions of Section 19/20 of the U.P. Municipalities Act, 1960 (hereinafter referred to as the 'Act'). It was alleged in the election petition that the names of many persons were entered at two places in the electoral rolls of the same ward and names of many persons were also entered in the electoral rolls of two wards and that both the aforesaid categories of persons had cast their vote twice. It was, therefore, alleged that in view of the provisions of Sub-sections (3) and (4) of Section 13-E of the Act, the votes of such persons would be void and if such votes are not counted then the election petitioner would be declared elected. The details of such persons were specifically mentioned in paragraph 18 of the election petition. During the pendency of the election petition two applications bearing Nos. (25-C) and (26-C) were moved by the election petitioner on 21.7.2007 and 28.7.2007 respectively. The application (25-C) was moved for summoning the marked electoral rolls of ward Nos. 4,5,6,8,13,14,17,18,20,22,23 and 25 from the District Magistrate Etah. In application (26-C) filed by the election petitioner it was stated that in support of application (25-C) the election petitioner was filing certified copy of the election results as well as the copy of the electoral rolls supplied to the election petitioner by the election office. It was further stated that from the electoral rolls supplied to the election petitioner, it would be clear that the names of many persons were entered twice in the electoral rolls of the same ward and the names of many persons were also contained in the electoral rolls of two wards. It was, therefore, prayed that the earlier application (25-C) that had been filed by the election petitioner for summoning the marked electoral rolls be allowed.
3. The applicant filed objections to the aforesaid two applications asserting that there was no need to summon the marked electoral rolls as they were not required for the disposal of the election petition. It was further asserted that it would not be possible to ascertain from the marked electoral rolls as to in whose favour the persons had cast their votes and in any case the objections about the electoral rolls should have been raised prior to the preparation of the electoral rolls.
4. The Election Tribunal by the order dated 21.8.2007 rejected the aforesaid two applications holding that the marked electoral list was not necessary for deciding the controversy involved in the election petition.
5. The election petitioner then filed a review application under Section 23(f) of the Act read with Order 65(f) of the U.P. Municipalities (Conduct of Election of President and Election Petition) Order, 1983 (hereinafter referred to as the 'Order'). The applicant filed objections to the aforesaid review application. The said review application was allowed by the Election Tribunal by the order dated 29.10.2007. The application (25-C) and (26-C) were allowed and an order was passed for summoning the marked electoral rolls from the District Magistrate. It is this order that has been impugned in the present application.
6. I have heard Sri Swapnil Kumar, learned Counsel for the applicant and Sri Arvind Kumar Singh, learned Counsel appearing for the election petitioner.
7. Learned Counsel for the applicant submitted that the Tribunal committed an illegality in reviewing the order as no useful purpose would be achieved by summoning the marked electoral rolls as it cannot be ascertained from the said document as to in whose favour the votes had been cast and that there was no error apparent on the face of the record.
8. Learned Counsel for the respondent No. 1 submitted that there is no infirmity in the impugned order and, therefore, the application deserves to be dismissed.
9. The election petition had been filed, inter alia, on the grounds that persons whose names appeared since in the electoral rolls of a particular ward had cast their votes twice and that many persons whose names appeared in the electoral rolls of two wards had also cast their votes twice.
10. Section 13-E of the Act deals with right to vote and is as follows:
13-E. Right to vote.- No person who is not, and except as expressly provided by this Act, every person who is for the time being entered in the electoral roll of any ward shall be entitled to vote in that ward.
(2) No person shall vote at an election in any ward if he is subject to any of the disqualifications referred to in Section 12-D.
(3) No person shall vote at a general election in more than one ward and if a person votes in more than one such ward, his votes in all such wards shall be void.
(4) No person shall at any election vote in the same ward more than once, notwithstanding that his name may have been registered in the electoral roll for that ward more than once, and if he does so vote, all his votes in that wad shall be void.
(5) No person shall vote at any election if he is confined in a prison whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the Police:
Provided that nothing in this sub-section shall apply to a person subject to preventive detention under any law for the time being in force.
11. It is, therefore, clear that if a person votes at a general election in more than one ward his votes in all such wards shall be void and that if a person votes in the same ward more than once then notwithstanding the fact that his name may have been registered in the electoral rolls for that ward more than once, but if he casts his vote more than once then all his votes in that ward would be void.
12. The election petitioner had filed the electoral rolls of certain wards and from the same he wanted to assert that many persons had cast their votes more than once. It is for this purpose that he desired that the Tribunal may pass an order for summoning the marked electoral rolls of those particular wards, which otherwise were not available to him, so that the votes cast by all such persons can be declared void.
13. The Tribunal by its order dated 21.8.2007 rejected the applications (25-C) and (26-C). The order is quoted below:
25/C and 26/C applications were moved by the petitioner that certain votes casted votes twice so marked list of such voters be summoned. 27/C objection has been filed by OP 1. It has alleged on behalf of the OP 1 that even if list is obtained, it cannot be ascertained that concerned voters voted in whose favour? Election petitioner himself has filed certified copies of lists and requisition of such list will not enable Court for deciding real controversy. As such appl 25/C and 26/C are rejected.
14. A perusal of the order indicates that the main reason which prevailed with the Tribunal for rejecting the applications was that even if the marked electoral roll was summoned, it would not be possible to ascertain in whose favour the votes had been cast.
15. As noticed above, in both the cases, where voters belonging to the same ward had cast their votes twice or where the voters belonging to different wards had cast their votes twice, in either case the votes would be declared void. It was, therefore, necessary to determine these void votes and, therefore, the Tribunal fell in error in rejecting the applications by the order dated 21.8.2007. The review application was, therefore, rightly allowed by the order dated 29.10.2007.
16. The application is, therefore, rejected.