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3. The S.D.O (C)-cum-Authorised Officer framed as many as 6 following issues :

1. Whether the respondent was not eligible to contest election? OPP.
2. Whether petitioner applied for re-counting the votes? OPP.
3. Whether invalid votes were counted in favour of respondent and its effect? OPP.
4. Whether the result was influenced?
5. Whether the respondent has been materially affected by the improper reception of any vote? OPP.
6. Relief.

4. The S.D.O(C)-cum-Authorised Officer returned findings on issues Nos. 1 to 4 in favour of respondent No. 4 and issue No. 5 was decided in favour of the petitioner concluding that one proxy votes of Shri Basakhu Ram cast by somebody else against serial No. 171 was counted in favour of respondent No. 4, therefore, the result of the elected person has been materially affected by improper reception of vote as provided under Section 175(1)(d)(i) of the Act. It was further held that in the event where the number of votes was equal in favour of the contesting candidates, the result should have been decided by toss on the basis of principles of natural justice. Consequently, the election of the office of the Pradhan of Gram Panchayat, Nanj was set aside and respondent No. 4 has been held to have seized the office of the Pradhan.

5. Against the order of S.D.O(C)-cum-Authorised Officer respondent No. 4 filed election appeal under Section 181 of the Act read with Rule 94 of the Election Rules before the Appellate Authority, who in turn set aside the order of the Authorised Officer and consequently dismissed the election petition of the petitioner. Now the petitioner has challenged the impugned order of Appellate Authority in this writ petition.

6. A joint reply on behalf of respondents 1 to 3 came to be filed by Shri B.M. Nanta, Addl. Secretary (Rural Development and Panchayati Raj) to the Government of Himachal Pradesh and separate reply was filed by respondent No. 4, the elected Pradhan. In their written statements respondents 1 to 3 have stated that the order passed by the Authorised Officer in election petition of the petitioner was based merely on speculation that the proxy vote was cast in favour of the winning candidate (respondent No. 4). It is stated that a proxy vote was cast against serial No. 171 of the Voter List, but the same was not challenged by the agents of the petitioner at the time of polling under the provisions of Rule 58 of Election Rules and as such the vote so cast could not be ignored at the time of counting as per the provisions of Sub-rule (v) of Rule 75 of the Election Rules and these provisions of law have not been discussed by the Authorised Officer, therefore, the order was rightly set aside by the Appellate Authority (respondent No. 2). It is again reiterated that the proxy vote has to be counted if the same has not been challenged and thus cannot be treated as improper reception of vote, when the particular voter viz. Shri Basakhu Ram appeared and wanted to cast his vote. When it appeared to the Presiding Officer on Poll duty that somebody else had already cast proxy vote against the name of Shri Basakhhu Ram, the Presiding Office has rightly issued tender ballot paper to him under the provisions of Sub-rule (1) of Rule 63 of the Election Rules and as per the provisions of Sub-rule (2) of Rule 63 the tender vote is required to be sealed in a separate packet and the same is not be counted at the time of counting of votes. This legal position has been rightly considered by the Appellate Authority, therefore, order of the Appellate Authority is sustainable on this legal ground. The respondents have also admitted that in total 713 votes were polled whereas 711 votes were found in the ballot box at the time of counting and shortfall of two votes by mistake had been put in the Ballot Box meant for the election of Zila Parishad. It is also submitted that the voter has to cast 5 votes at a time for electing members, Up Pradhan and Pradhan, members of Panchayat Samiti and Zila Parishad. The counting of votes in case of members, Up Pradhan and Pradhan was done at the headquarters of Gram Panchayat, whereas the counting of votes in case of Members of Panchayat, Zila Parishad was done at the block headquarters and as such the result of election of Pradhan of Gram Panchayat had been rightly declared on the basis of the Ballot Papers found in the Ballot Box meant for the election of Pradhan. It is further submitted that there is no provision under the Act or Election Rules for rejecting a ballot paper which is found torn and one ballot paper was not found torn in two pieces. 7. Respondent No. 4 in her written statement has taken preliminary objection challenging the maintainability of the writ petition and stated that before approaching this Court, the petitioner has not exhausted the remedy as provided under the Act. It is also averred that the petitioner besides challenging the orders dated 5-4-1998 passed by the Appellate Authority (respondent No. 2) has also challenged the findings of issues Nos. 2 and 3 decided against her by the Authorized Officer and she is estopped from challenging the findings as at no point of time the petitioner has challenged these findings by filing an appeal before the Appellate Authority. On merits, it is specifically admitted that the petitioner had secured 349 valid votes whereas the answering respondent secured 350 valid votes. She has alleged that prior to recounting of votes on the oral request of the petitioner, the respondent was winning by a margin of 3 votes from the petitioner but the respondent accepted the decision of the Returning Officer of recounting of votes and after recount the respondent had won by margin of 1 vote. The respondent has vehemently denied that the alleged proxy vote of Basakhu Rum was cast in her favour rather it was cast in favour of the petitioner. It is submitted that the result of the election has in no way affected materially as alleged by the petitioner. The respondent has sought to support the order of the Appellate Authority passed in her favour and seeks for dismissal of the writ petition.

14. The main contention of the learned counsel for the petitioner was that counting of proxy vote cast by someone else against serial No. 171 in the name of Shri Basakhu Ram and counted in favour of respondent No. 4 by the Returning Officer has materially affected on the result of the election and by such improper reception of such vote the election of respondent No. 4 to the office of Pradhan, Gram Panchayat, Nanj has rightly been set aside by the Authorised Officer and that the reasoning of the Appellate Authority setting aside the said order is not proper and valid. We have given our thoughtful consideration to the contention of the learned counsel and in our considered view the contention deserves to be rejected. From the order of the Authorised officer it is manifestly clear that the Authorised Officer has misdirected himself holding that the proxy vote cast by someone in the name of Shri Basakhu Ram was counted by the Returning Officer in favour of respondent No. 4 and thereby she won by a margin of one vote which has resulted the election of respondent No. 1 materially affected by improper reception of one vote. It is the basic principle of the election law that secrecy of the ballot papers has to be maintained by the persons authorised under law to hold the elections. There is not an iota of evidence on record to prove that one proxy vote cast against the name of Shri Basakhu Ram was in favour of or counted the name against petitioner. The Authorised Officer has merely perused the marked copy of voter list wherefrom it could not be ascertained that the proxy vote was cast in favour of the petitioner and thereby the result of the elected person was materially affected by improper reception of vote. The petitioner or her election agent or polling agent at no point of time has challenged the identity of the person claiming to be a particular voter under Rule 58 of the Election Rules at the time when such person entered the polling station and cast the vote, if the proxy vote was cast and not challenged, such vote has to be counted and cannot be treated as improper reception of vote. On the appearance of Shri Basakhu Ram the Presiding Officer has rightly issued a ballot paper to him under the provisions of Sub-rule (1) of Rule 63 of the Election Rules and as per provision of Sub-rule (2) of the said rules the tender vote is required to be sealed in a separate packet and the same has not to be counted at the time of counting of votes and therefore, the procedure adopted by the Returning Officer in the present case is absolutely in accordance with law.

15. The identity of vote cast by a voter in favour of a particular candidate is not established after counting and recounting of voles. There is no material on record to prove that the proxy vote cast on behalf of Shri Basakhu Ram had any specific mark and was found having been cast in favour of elected candidate (respondent No. 4). The only evidence brought on record was that Shri Basakhu Ram's name has appeared at serial No. 171 in the voter list and someone else had cast vote on his behalf. It is the settled proposition under the election law that the person who has challenged the election of the elected candidate, has to prove the allegations made in the election petition by cogent and convincing evidence and unless the heavy burden is discharged by the person concerned, the election petition cannot be accepted and the elected person in whose favour the electors have reposed their confidence by democratic franchise of votes the election will be invalid if the reception of votes cast by impersonation has materially affected the result. The Authorised Officer has not compared the ballot papers, the serial number in the electoral rolls of the proxy vote with the serial No. of the counter-foil retained by the Returning Officer and while deciding the question whether the proxy vote was cast by the initial voter in the name of Shri Basakhu Ram in favour of the returned candidate (respondent No. 4). The Authorised Officer has first to decide based upon the evidence led by the parties whether certain ballot paper of Shri Basakhu Ram was improperly received and the vote was cast in favour of returned candidate (respondent No. 4), thereby materially affecting the result of the election. Without deciding the moot question whether the vote was cast in favour of the returned candidate (respondent No. 4), it cannot be concluded that the returned candidate (respondent No. 4) has won by a margin of one vote which was cast as proxy vote in her favour. The order of the Authorised Officer concluding that there had been improper reception of proxy vote in favour of returned candidate (respondent No. 4) which has materially affected the result of the election was passed without positive and clinching evidence and the Appellate Authority was right in setting aside the same. We have considered the submissions of the learned counsel for the petitioner in the light of the factual and the provisions of the Act and Election Rules referred to above and come to the conclusion that the order of the Appellate Authority impugned in this writ petition is sustainable and does not suffer from any infirmity or illegality.