ORDER Mehrotra, J.
1. This is an application under Article 226 of the Constitution praying that a writ of mandamus toe issued directing the opposite parties not to hold any fresh poll for the election of Pradhan, of Gaon Sabha Ganaura, district Mirzapur.
2. The facts which are alleged in the affidavit and which have been substantially admitted by the opposite party No. 3 are that the Gaon Sabha Ganaura consists of Sheopura, Sihauli, Ramgarhwa and Ganaura. The elections for the various offices of the Gaon Sabha were held on the 29th of December, 1955. The petitioner and the opposite party No. 3 Bhaggar Prasad were the two duly nominated contestants for the election of the Pradhan of the Gaon Sabha.
The polling-took place at four different polling booths and different Polling Officers were appointed. The Parties' agents were present at the various polling booths and on the 31st of December, 1955, the polling returns were verified by the Returning Officer and the petitioner was duly declared elected as the Pradhan of the Gaon Sabha. It appears that subsequently fresh elections were ordered to take place on the 18th of January, 1956. On these facts the present petition was filed in this Court in which it is prayed that a mandamus be issued directing the opposite parties Nos. 1 and 2 not to hold fresh elections.
3. Notices were issued to the opposite parties and a counter-affidavit has been filed on behalf of opposite party No. 3 in which it is admitted that the petitioner and opposite party No. 3 were the two duly nominated candidates for the office of the Pradhan. The election did take place on the 30th of December, 1955, but, according to the opposite party No. 3, no proper counting was done on that day. The votes polled in favour of opposite party No. 3 were not counted by the Presiding Officer properly and an incorrect return was submitted by him to the Returning Officer in which he showed that the petitioner had obtained a larger number of votes than that of opposite party No. 3. An application was made by opposite party No. 3 to the Returning Officer who made a spot enquiry and came to the conclusion that the counting was not properly done and therefore in the exercise of his powers under Rule 19-F of the Rules framed under the Act he declared the election void and directed that fresh elections should take place. The opposite party No. 3 in the counter-affidavit has said that in fact the application made by him on the 30th of December, 1955, was itself in the nature of an election petition on which the spot enquiry was made on the 4th of January, 1956, and the District Returning Officer declared the election void. Having declared the election void under Rule 19-F the necessary consequence was that under Sub-clause. (2) of the said rule a fresh election has to be fixed and thereupon the 18th of January, 1956, was fixed for the fresh election.
4. The main question to be considered is whether the District Returning Officer has power under Rule 19-F to declare the election void and order a fresh election after the necessary declaration had been made under Rule 19 (1) of the Rules framed under the Act.
5. The main contention raised by the petitioner is that after the polling returns had been verified by the Returning Officer under Rule 19-G of the Rules a declaration is to be made by the Returning Officer and on the 31st of December, 1955, the petitioner had been duly declared elected by the Returning Officer, Thereafter the remedy of the opposite party was only to file an election petition and the election could not have been challenged otherwise than by means of an election petition. The District Returning Officer had no power under Rule 19-F to order the cancellation of the election and direct a fresh election to take place. Section 12-C of the Act provides that:
"12-C (1) The election of a person as Pradhan of a Gaon Sabha or as member of a Gaon Panchayat including the election, of a person who may be appointed as a Panch of a Nyaya Panchayat under Section 43 shall not be called in question except by an application presented to such authority within such time and in such manner as may be prescribed on the ground that-
(a) the election has not been a free election by reason that the corrupt practice of bribery or undue influence has extensively prevailed at the election, or
(b) that the result of the election has been materially affected-
(i) by the improper acceptance or rejection of any nomination; or
(ii) by gross failure to comply with the provisions of this Act or the Rules framed thereunder."
There is a provision in the Rules under which the Presiding Officer has to count" the votes and if he deliberately wrongly counted the votes and made a false return he cannot be said to have complied with the Rules and it must be deemed under the law a failure to comply with the Rules and therefore that could have been a valid ground for challenging the election under Section 12-C. The contention of the opposite party however is that Section 12-C deals with the right of a defeated candidate to challenge the election while Rule 19-F deals with the right of the District Magistrate to declare an election void and therefore there may be cases where the election may not be contested by the defeated candidate and if any grounds of Rule 19-F are there it gives the District Magistrate power to declare the election void and in view of this matter there is no conflict between Section 12-C and Rule 19-F.
There is to my mind a fallacy in the argument advanced by the opposite party. Section 12-C provides that the election shall not be called in question except by an application presented to such authority on the grounds enumerated in the section. Any order passed by the District Magistrate after the candidate had been duly declared elected under Rule 19-F is nothing but calling in question the election and therefore such a power could not be exercised by the District Magistrate after the election had been declared and the only authority which could set aside the election was the tribunal constituted under Section 12-C on an application made by the defeated candidate.
Apart from it, Rule 19-F (1) is only to my mind limited to the exercise of the powers before a return has been verified by the Returning Officer and the person has been duly declared elected. Thereafter any order setting aside the election can only be passed under Section 12-C. If an application is made under Section 12-G the parties have got a right to lead evidence and the question whether the Presiding Officer had properly counted the votes or not could have been considered by the Tribunal. Under Rule 19-F no procedure is provided for an enquiry and therefore it cannot be held to be a substitute for an enquiry by the Tribunal.
6. The next point which can be considered in this case is that under Section 12-C one of the grounds for setting aside the election is a failure to comply with the provisions of the Rules. Rule 19-F reads as follows:--
"19-F (1). If at any election any polling return is taken out of the custody of the Returning Officer or of any Presiding Officer, or is in any way tampered with or is either accidentally or intentionally destroyed or lost, the election to which such return relates shall be void."
These words to my mind imply that if there has been a valid return and if it had been tampered with or is either accidentally or intentionally destroyed or lost it gives a right to the District Magistrate to declare the elections void and to order for a fresh poll. There had been no valid return at all inasmuch as it was a forged return and the counting was improperly done. It is challenging the very validity of the return itself.
That can be a ground for attacking the election under Section 12-C but that cannot be a ground for the District Magistrate to order repoll. On the facts of this case and on the allegations made by the petitioner himself it was not a case which was covered by Rule 19-F and the District Magistrate could not exercise any powers under that rule in this case.
7. It was then contended by the opposite party that the petitioner is not entitled to any relief inasmuch as there is a finding by the competent authority that the fraud was committed at the election. There is no force in this contention either. This contention is baaed on the assumption that the finding of the District Magistrate is a correct finding.
Although that being a finding of fact this Court cannot upset that finding in the exercise of its powers under Article 226 of the Constitution, but as the District Magistrate had no power to investigate into the matter it may be" deemed as if there is no finding by a competent authority and it is not open to the opposite party to rely upon that finding and to say that fraud had been committed by the petitioner.
8. It was argued that the petitioner has suppressed certain material facts and therefore that disentitles him to a relief of mandamus. This objection is in a way connected with the previous objection which I have already dealt with. If the finding of the District Magistrate is without jurisdiction no reliance can be placed on it in pointing out that there has been any material suppression by the petitioner in his petition.
9. It was further contended that the petitioner has not asked for any writ of certiorari and unless the order is set aside no mandamus can be granted. All the facts have been brought to the notice of the Court and this Court can issue any direction having regard to the facts of the case under Article 226 and therefore the failure on the part of the petitioner to specifically ask for the issue of a direction that the order should be quashed and a consequential mandamus should be issued directing the other side not to hold fresh elections is immaterial. The order itself has been placed before the Court by the opposite party and after having come to the conclusion that that order is without jurisdiction there is no bar to this Court issuing a necessary direction quashing that order and a consequential mandamus.
10. Under these circumstances I allow this petition with cost quash the order of the District Magistrate dated the 31st of January, 1956, and issue a mandamus directing the opposite parties not to hold fresh election.