C.M. Lodha, J.
1. This writ petition under Article 226 of the Constitution of India is directed against the order of the Additional Collector, Bharatpur dated 1st May, 1973 by which counting of votes pertaining to the seat of Nayaya Panch from village Panchayat Mai was refused on the ground that the poll had been closed on account of disturbance of public peace.
2. The Nayaya Panchayat Pigora is composed of 6 members out of which two retired in February, 1973. The Collector, Bharatpur, appointed Shri Hari Prassad Sandilaya, Agricultural Extension Officer, Panchayat Samiti, Nadbai (respondent No. 3) to hold elections of two members of the Nayaya Panchayat-one from village Panchayat Mai end the other from Jhangirpur. The petitioner and the non-petitioner No. 5 Bhagwan Singh filed their nomination papers for the seat from Gram Panchayat Mai. Dayachand and Dhruv singh filed nominations of the seat of village Panchayat Jhangirpur. The polling took place on 30th April, 1973. 11 Panchas of Jhangirpur Panchayat and 10 Panchas of Mai Panchanyat were required to cast their votes for electing one member each in the Nayaya Panchayat from their respective constituencies. All the panchas of Jhangirpur Panchayat cast their votes but out of 10 Panchas of Mai Panchayat only 9 cast their votes and one did not turn up at the polling station at all. The petitioner's case is that the counting started for Jhangirpur seat at 1.30 P.M. on 30th April, 1973 and Dhruvsingh was declared elected. At that time the non-petitioner No. 5 Bhagwan Singh is alleged to have threatened the Presiding Officer if he counted the votes of the Mai Panchayat, and the Presiding Officer respondent No. 3 succumbed to this threat and announced that he would take the ballot box to the Collector, Bharatpur and count the votes before him. The petitioner goes on to state that on his approaching the Collector, Bharatpur for counting the votes, the latter directed the Presiding Officer to take back the ballot box to the poling booth and count the votes there. But the respondent No. 3 reported that he bad postponed the election on election account of disturbance of the public peace. The petitioner's is version is that the Collector, Bharatpur also agreed with respondent No. 3 and directed that the ballot-box be kept in safe custody. The petitioner has prayed that the Collector, Bharatpur and the Presiding Officer namely respondent No. 3 may be directed to count the votes and declare the result with respect to the seat of Mai Panchayat and they may be further restrained from holding re-election for the membership of the Nayaya Panchayat, Pigora from the constituency of Mai Panchayat. The petition has been resisted on behalf of non-petitioner No. 5 Bhagwansingh who had also filed a written reply to the writ petition. His case is that while the polling was in progress, the petitioner forcibly took away Gyasi, one of the voters, from the site of the polling booth, with the result that he could not vote and if he had voted, his vote would have been cast in favour of non-petitioner No. 5. It is further alleged that Babulal, Secretary of the Co-operative Society, Mai unlawfully snatched the ballot paper from the hands of Smt. Kaushalva and put the seal against the name of the petitioner on the ballot paper of Smt. Kaushala against her fishes and put the ballot-paper into the ballot-box. Thus the non-petitioner No. 5 has justified the act of the Presiding Officer in closing the poll and announcing a closure on account of disturbance of public peace.
3. It is further important to point out that no affidavit of Gyasi who is alleged to have been forcibly removed from the polling booth nor of Smt. Kaushalya whose ballot paper is alleged to have been snatched by the Secretary of the Co-operative Society, Mai has been submitted by the non petitioner No. 5 Thus the non-petitioner No. 5 has failed to satisfy the Court that Gyasi was in any way prevented from casting his vote or that the ballot-paper of Smt. Kushalya had been snatched and she was not allowed to cast her vote of her free will. It has been mentioned in reply filed by the non-petitioner No. 5, that Smt. Kaushalya has made a written complaint to the respondent No. 3, but no copy of such reply has been placed on the record. Thus it appears that the polling was over. This inference is clearly deducible from the fact that the polling for the seat for jhangirpur Panchayat had been complete and the votes bad actually been counted. It is also clear that votes for seats from both the Panchayats were cast simultaneously. In these circumstances, the Version of petitioner must be taken as correct that disturbances, if any, was created not in the course of the polling but after the polling was over and after the counting of the votes in the ballet-box pertaining to the Panchayat Jhangirpur had been counted. In these circumstances the Returning Officer, respondent No. 3 as well as the Collector, Bharatpur, were not justified in refusing to count the votes contained in the ballot-box pertaining to the seat for the Panchayat Mai.
4. Consequently, I allow this writ petition and quash the order of refusal to count the votes passed by the Additional Collector, Bharatpur on 1st May, 1973 and direct the Collector, Bharatpur as well as respondent No. 3. Returning Officer, to proceed with the counting of votes contained in the ballot box pertaining to the Panchayat Mai and declare the result in accordance with law. No order as to costs.