ORDER
S.K. Homchaudhuri, J.
1. This petition under Article 226 of the Constitution is directed against the order dated 16-7-92 passed by Shri L. C. Baruah, District Judge, Goalpara in Misc. (Election) Case No. 22/92 setting aside the election of the petitioner and declaring the respondent No. 2, Musstt Noorjahan Begum elected as President of Nabagata Similitola, Gaon Panchayat.
2. In the election for the Presidentship of 46 Nabagata Similitola Goan Panchayat held on 24-2-92, the petitioner was declared elected for securing highest number of votes. Her election wad challenged in Misc. (Election) Case No. 22/92 by the respondent No. 2 Musstt Noorjahan Begum. In the application for setting aside the election, Musstt Noorjahan Begum amongst others alleged that there were anomalies in the counting of ballots. After receipt of the notice, the petitioner contested the case and filed written statement specifically denying the allegations made in the petition. The learned District Judge thereafter, on the pleadings of the parties framed as many as 6 issues. After framing the issues, the learned District Judge, however, without requiring the parties to adduce evidence in support of their contentions and without deciding whether there was any anomaly in the counting decided to inspect and count the votes polled in favour of the candidates. After inspection and recounting the learned District Judge by the impugned judgment held that respondent No. 2, secured 15 votes more than the petitioner in the election and consequently set aside the election of the petitioner and declared the respondent No. 2 to have been elected. Feeling aggrieved, the petitioner has approached in this petition.
3. I have heard Mr. A. Ahmed, learned counsel for the petitioner and Mr. M. A. Shiekh, learned counsel for the respondent No. 2 and also perused the materials placed before me.
4. Mr. A. Ahmed, learned counsel for the petitioner submits that the learned District Judge committed errors of law apparent on the face of records in jumping to the conclusion that he was prima facie satisfied that it was a case for inspection of the ballots and counting thereof without any supporting evidence on record. When the petitioner has contested the contention of the respondent No. 2 that there were anomalies in counting of ballots, the learned District Judge acted illegally and without jurisdiction in arriving at the conclusion without being satisfied that the respondent No. 2 by adducing cogent evidence established that there were anomalies in counting of ballots. Mr. Ahmed further submits that the learned District Judge committed manifest error of law in inspecting and counting of ballots on different dates namely, 18-6-92, 19-6-92 and long thereafter on 14-7-92.
5. Mr. M. A. Sheikh, learned counsel for the respondent No. 2 on the other hand, submits that the Rule 56(i) of the Assam Panchayati Raj (Constitution) Rules, 1990, amongst other provides that it shall only be necessary for the Judge to make a memorandum of the substance of the evidence of any witness examined by him which implies that a Judge in his discretion may or may not examine any witness. This submission of the learned counsel for the respondent No. 2 is not at all tenable. When there is no contest in a case, only in such situation, the learned District Judge may not examine witness. But when the allegation made in the petition challenging an election is contested, the allegations contained in the election petition are to be established by adducing evidence. In the instant case, the allegation that there were anomalies in the counting of ballots has very much been contested by the elected candidate namely, the petitioner by filing written statement and issues were also framed on the basis of the pleadings of the parties. The learned District Judge was in duty bound to see whether the respondent No. 2 by adducing evidence has discharged the initial burden in support of the allegation that there were anomalies in the process of counting the ballots. Merely on the pleadings the learned District Judge ought not and must not have, come to the conclusion that there were anomalies. As such, I have no hesitation to hold that the learned District Judge committed manifest errors of law apparent on the face of the records in jumping to the conclusion merely on the basis of the pleadings that there was prima facie case for inspection and recounting of ballots without requiring the respondent No. 2 to discharge his initial burden by adducing evidence in support of his contention that there were such anomalies. I also find force in the submission of the learned counsel for the petitioner that the learned -District Judge committed errors of law in inspecting and counting the ballots on different dates namely first on 18-6-93 and 19-6-92 and long thereafter on 14-7-92,
6. For the reasons stated above, the impugned judgment and order cannot be sustained. The petition is, therefore, allowed and the impugned judgment and order dated 16-7-92 passed by the learned District Judge, Goalpara in Misc. (Election) Case No. 22/92 is set aside.’ The Misc. (Election) Case No. 22/92 is restored to file of learned District Judge. The learned District Judge will dispose of the case in accordance with law, untrem-melled by what is held in the impugned judgment and order and strictly on the basis of the evidence adduced by the parties in support of their respective contentions. In case the respondent No. 2 by adducing cogent evidence, makes out a case for inspection and counting of ballots, inspection and counting of ballots should be conducted in the same transaction before the contesting parties and/or their authorised representatives with the notice to them, fixing time, date and place of counting. The learned District Judge will dispose of the case expeditiously, preferably within a period of 6 (six) months from the date of receipt of the records. I make no order as to costs.