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Ramdas Sheoramji Vs. Panjab Govindraoji and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai High Court
Decided On
Case NumberSpl. Civil Appln. No. 449 of 1968
Judge
Reported inAIR1970Bom96; (1970)72BOMLR173; ILR1971Bom222; 1969MhLJ425
ActsBombay Village Panchayats Act, 1959 - Sections 13, 13(3) and 13-A; Representation of the People Act, 1950 - Sections 13(1) and 16; Bombay Village Panchayats Rules, 1959 - Rule 34(3); Bombay Village Panchayats Act, 1958 - Sections 15; Bombay Village Panchayats Election Rules - Rules 2(2), 21, 21(1), 23, 29(1), 29(2), 33 and 33(1); People Act, 1951 - Sections 62, 62(1), 62(2) and 62(3); Zilla Parishads Act; Maharashtra Municipalities Act, 1965 - Sections 14
AppellantRamdas Sheoramji
RespondentPanjab Govindraoji and ors.
Appellant AdvocateP.T. Trivedi, ;P.S. Badiye and ;G.J. Mundhada, Advs.
Respondent AdvocateS.P. Deshpande, Adv.
Excerpt:
bombay village panchayats act (bom. iii of 1959), sections 12, 13, i3a - bombay village panchayat rules, 1959. rules 21(1)(iii), 23(1), 29(2), 33(1)(d), 2(2) - representation of the people act (xl1i1 of 1952), section 62--representation of the people act (xliii of 1950), section 16--maharashtra municipalities act (mah. xl of 1965), section 14--voter's name appearing in list for more than one ward - whether such voter entitled to vote in all such wards. ;under the bombay village panchayats act, 1958, and the rules framed thereunder a person whose name appears in the voters' list for more than one ward and who is otherwise qualified to vote will be entitled to vote in more than one ward. ;under rule 21 of the bombay village panchayats rules, 1959, objections are to be addressed to the.....padhye, j.1. village jaola shahapur in taluq achalpur, district amravati has been divided into four wards for the purposes of village panchayat ward no. 4 with which we are concerned in this petition is a double-member constituency. the elections to the village panchayat in this village were held on 11-4-1967. the petitioner and the respondents nos. 1 to 3 were the four candidates for election to the village panchayat from ward no. 4. two members were to be elected from this constituency. as a result of the counting on 13th april, 1667 it was found that the respondent no. 2 ganeshrao malluji secured 92 votes, the petitioner and the respondent no. 1 secured 87 votes each and the respondent no. 3 hiraman secured 72 votes. being a double-member constituency, the respondent no. 2 ganeshrao.....
Judgment:

Padhye, J.

1. Village Jaola Shahapur in taluq Achalpur, district Amravati has been divided into four wards for the purposes of Village Panchayat Ward No. 4 with which we are concerned in this petition is a double-member constituency. The elections to the Village Panchayat in this village were held on 11-4-1967. The petitioner and the respondents Nos. 1 to 3 were the four candidates for election to the Village Panchayat from Ward No. 4. Two members were to be elected from this constituency. As a result of the counting on 13th April, 1667 it was found that the respondent No. 2 Ganeshrao Malluji secured 92 votes, the petitioner and the respondent No. 1 secured 87 votes each and the respondent No. 3 Hiraman secured 72 votes. Being a double-member constituency, the respondent No. 2 Ganeshrao who secured largest number of votes was first declared elected. So as to secure the second seat, there was a tie between the petitioner and the respondent No. 1. each of them having secured 87 votes. Since the petitioner and the respondent No. 1 secured equal votes, the Returning Officer acted under Rule 34, Sub-rule (3) of the Bombay Village Panchayats Rules, 1959 and lots were drawn as a result of which the petitioner was declared elected. The respondent No. 1, therefore, filed an election petition under Section 15 of the Bombay Village Panchayats Act, 1958.

2. It was alleged on behalf of the respondent No. 1 Panjabrao that voter by name Bainabai Kanekar voted in both the wards Nos. 1 and 4 and therefore, both of her votes were to be declared void and since in Ward No, 4 Bainabai had voted for the present petitioner, that vote should be excluded from the number of votes he obtained as a result of which the respondent No. 1 would get 87 votes, that is, one vote more than the votes polled by the petitioner. The votes from Wards Nos. 1 and 4 were, therefore, scrutinised by the Second Civil Judge, Achalpur before whom the election petition was filed and on scrutiny he found that the said Bainabai had voted both in Ward No. 1 as well as in Ward No. 4. Bainabai's name was included in the voters' list of Ward No. 1 at serial No. 155 and in the voters' list of Ward No. 4 at serial No. 13. The learned Civil Judge found that her name appeared in the voters' lists of Wards Nos. 1 and 4, that she was issued ballot papers in both these wards and that she voted in both these wards. It was further found by him that in Ward No. 4 she had cast the vote in favour of the present petitioner and, therefore, held that the petitioner's votes should be counted as 86 instead of 87 after excluding the vote of Bainabai and the respondent No. 1's votes would be 87 as already declared. On these findings the learned Civil Judge set aside the election of the present petitioner and declared the respondent No. 1 Panjabrao as elected to the Village Panchayat from Ward No. 4. This decision is challenged by the present petitioner.

3. In deciding this question, the learned Civil Judge placed reliance on the provisions of Section 62 of the Representation of the People Act, 1951, and particularly on Clause (3) which states that:

'No person shall vote at a general election in more than one constituency of the same class, and if a person votes in more than one such constituency, his votes in all such constituencies shall be void.'

He also relied upon the provisions of Section 13 of the Bombay Village Panchayats Act read with the provisions in the Representation of the People Act, 1951, for the purposes of holding that Bainabai was not qualified to vote in both the wards and she ought to have voted in one ward only.

4. In this petition, the present petitioner alleges that it has not been established that Smt. Bainabai Kanekar in both these wards was the same person and that one person Smt. Bainabai has voted both in Ward No. 1 as well as in Ward No. 4. It is also contended that the learned Civil Judge has not given any reasons whatsoever for coming to this conclusion that Smt. Bainabai Kanekar, whose name is included in the voters' list of Ward No. 1 is the same Bainabai Kanekar whose name Is Included in the voters' list of Ward No. 4. It is also alleged that the learned Civil Judge has not given any reasons to hold that only one lady by name Smt. Bainabai Kanekar cast her vote both in Ward No. 1 as well as in Ward No. 4.

5. Rule 23, Sub-rule (iv) of the Bombay Village Panchayats Election Rules, 1959, provides the manner in which the ballot papers are issued to the voters whose names are in the voters' list. It provides:

'(iv) In cases where no objection has been raised, after recording the serial number of the ballot paper against the entry relating to the voter in the copy of the voters' list, the polling officer shall give the ballot paper to the voter and admit him to the polling room, but not more than one voter shall be admitted to the polling room at a time.'

From this sub-rule it is clear that every ballot paper is given a serial number. This also is nowhere disputed by the petitioner. Then there is the voters' list and whenever a ballot paper is issued that serial number of the ballot paper is noted against the name of that particular voter to whom the ballot paper is issued. On a mere scrutiny, therefore, of the voters' lists both of Ward No. 1 and Ward No. 4 it could be found out that a ballot paper was issued to Smt. Bainabai Kanekar from Ward No. 1 and Ward No. 4, and the learned Civil Judge has so found. No further evidence in fact was necessary to arrive at this conclusion and we do not see any force in the contention on behalf of the petitioner on this count.

6. It was then urged that it has not been established that the voter Bainabai who voted in Ward No. 4 was the same Bainabai who voted in Ward No. 1, as there could be two different persons in the village bearing the same name. We do not find any averment in the petition or in the affidavit filed by the petitioner that there are more than one person by the name Smt Bainabai Kanekar. On the other hand, the respondent No. 1 in his affidavit has categorically stated that there is only one person in the whole of the village by the name of Smt. Bainabai Kanekar and there is no other person by that name. It is, therefore, clear that it is the same Bainabai Kanekar whose name is included in the voters' lists both of Ward No. 1 as well as Ward No. 4 and she is the same person who has voted in both the wards. It is then urged that there was nothing to show, and the learned Civil Judge has not discussed how he came to the conclusion, that this Bainabai voted for the petitioner in Ward No. 4. It can be found out from a particular ballot paper as to for which candidate the voter has voted, because against the name of that voter a mark has to be made as provided. It is also possible to find out from the serial number given on the ballot paper as to who is the voter as that serial number is noted against the name of the voter in the voters' list. From this it can be clearly found out that Smt. Bainabai Kanekar had voted for the petitioner in Ward No. 4 and on scrutiny of the ballot papers, the learned Civil Judge has so found. We do not see why the conclusion arrived at by him should be disregarded. We see, therefore, no force in any of the contentions raised on behalf of the petitioner in the grounds raised by him.

7. While hearing the arguments of the counsel, it appeared to us that in the Bombay Village Panchayats Act or the Bombay Village Panchayats 'Election Rules, there was no bar to one person being in the voters' list of more than one ward and further voting in more than one ward. The learned Civil Judge has referred to the provisions of the Representation of the People Act, 1951, Section 62 of which makes a provision in respect of the right to vote. Sub-section (1) of Section 62 states:

'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 constituency shall be entitled to vote in that constituency.'

Sub-section (2) provides:

'No person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in Section 16 of the Representation of the People Act, 1950 (43 of 1950).'

Sub-section (3) provides that no person shall vote at a general election in more than one constituency of the same class, and if a person votes in more than one such constituency, his votes in all such constituencies shall be void. Section 13 of the Bombay Village Panchayats Act gives the qualifications of a person to vote and be elected. It provides by Sub-section (1) that every person whose name is in the list of voters shall, unless disqualified, under this Act or any other law for the time being in force, be qualified to vote at the election of a. member for the ward to which such list pertains. Section 12 of the said Act provides for the preparation of the list of voters and Sub-section (1) states that the electoral roll of the Maharashtra Legislative Assembly prepared under the provisions of the Representation of the People Act, 1950, and in force on such day as the State Government may by general or special order notify in this behalf for such part of the constituency of the Assembly as is included in a ward or a village shall be the list of voters for such ward or village. Sub-section (2) of Section 12 provides that an officer designated by the Collector in this behalf shall maintain a list of voters for each such ward or village. Under Sub-section (1) ol Section 12, therefore, the electoral roll of the Maharashtra Legislative Assembly is to be taken as a guide or basis for preparing the voters' list in a particular ward and those voters from a particular ward or voters of the constituency of the Assembly from that ward are to be the voters in that ward for the purposes of the Village Panchayat Elections. Subsection (3) of Section 13 provides that subject to any disqualification incurred by a person, the list of voters shall be conclusive evidence for the purpose of determining under this section whether any person is qualified or is not qualified to vote, or as the case may be, is qualified or is not qualified to be elected, at any election. In this Act no disqualifications have been given for being a voter, though for being a member of the Panchayat disqualifications have been given under Section 14 of the Act. It would thus appear on the reading of Sub-section (1) of Section 13 that every person whose name is in the list of voters will be qualified to vote at the election of a member for that ward to which such list pertains, unless he is disqualified either under this Act or any other law for the time being in force. The only law under which disqualifications of a voter have been given is the Representation of the People Act, 1950. We could not find, and it was not shown to us, that in any other Act like the Zilla Parishads Act or the Municipalities Act, there are any such disqualifications given for being a voter. The learned Civil Judge has relied on Section 16 of the Representation of the People Act, 1950, in order to hold that Bainabai was disqualified to vote in two wards.

8. Section 16 of the Representation of the People Act, 1950 (43 of 1950) gives the disqualifications for registration in an electoral roll and they are only three, namely, (1) that he is not a citizen of India, (2) that he is of unsound mind and stands so declared by a competent court and (3) that he Is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections. It has not been shown that Bainabai Kanekar falls within any of the three categories referred to above and in the absence of that, she is not disqualified for registration, either in the electoral roll of the Parliamentary Constituency or the Assembly Constituency and in consequence, in the electoral roll or the voters' list of the Village Panchiyat There is no such bar to be found anywhere either in the Representation of the People Act or the Bombay Village Panchayats Act or any other Act that a person's name cannot be entered in more than one Constituency or in more than one ward. The only bar, so far as the Representation of the People Act and the Maharashtra Municipalities Act are concerned is, that if such a person whose name is included in more than one voters' list votes in more than one ward, then his votes in all such constituencies or wards shall be void. In fact. Section 13-A of the Bombay Village Panchayats Act permits a person to be elected to more than one seat in the Village Panchayat, but after he is elected to more than one seat, he has to resign from all but one of the seats and if he does not do so within the prescribed time, then all the seats become vacant

9. Section 14 of the Maharashtra Municipalities Act 1965 may be referred to in this connection. Sub-section (1) of Section 14 of the said Act provides that no person shall be entitled to vote at a general election in more than one ward, notwithstanding that his name may appear in the list of voters for more than one ward, and if a person votes in more than one ward his votes in all wards shall be void. It thus contemplates cases where a person's name may appear in the 'list of voters for more than one ward and there does not appear to be any bar to such inclusion of the names in more than one ward. The only restriction which has been imposed by this provision of the Maharashtra Municipalities Act, which is similar to Sub-section (3) of Section 62 of the Representation of the People Act, 1951, is that if he votes in more than one ward then all his votes would become void.

10. The question, therefore, now is whether Bainabai Kanekar whose name is included in the list of voters for ward No. 1 as well as ward No. 4 having voted in both the Wards, her votes are liable to be excluded from both the wards being void. For this, we do not find any specific provision either in the Bombay Village Panchayats Act or in the rules framed under the said Act, just as, there is a specific provision in that respect in the Representation of the People Act, 1951 or the Maharashtra Municipalities Act, 1965. In the absence of a specific provision to that effect, the votes given by Bainabai in ward No. 1 as well as in ward No. 4 cannot be excluded as she is not otherwise disqualified and in fact she is a qualified voter as contemplated by Section 13(1) of the Bombay Village Panchayats Act.

11. It is contended that the Representation of the People Act makes a provision for such a contingency and that should be applied to the elections of the Village Panchayats under the Bombay Village Panchayats Act also. The provisions of the Representation of the People Act are not made' applicable to the elections of the Village Panchayats under the Bombay Act and it is only in certain respects that the provisions of the Representation of the People Act have been referred to in the Bombay Village Panchayats Act. For example, the provisions of the Representation of the People Act could be brought in by reference for the purposes of Section 12 and Section 13 of the Bombay Village Panchayats Act The said Act has specifically been referred to in Section 12 of the Bombay Village Panchayats Act and also would be included in the term 'any other law for the time being in force' under Section 13(1) of the Bombay Village Panchayats Act. However, the whole of the Representation of the People Act cannot be made applicable to the elections under the Bombay Village Panchayats Act It will not, therefore, avail the respondent No. 1 to say that the provisions of Section 62(3) of the Representation of the People Act, 1951, should be read into the Bombay Village Panchayats Act and on its basis the votes of Bainabai should be excluded.

12. It has to be noted that a specific provision for this purpose has been made in the Representation of the People Act without which the Legislature must have thought that the votes of such a voter voting in more than one constituency could not be excluded. A similar provision has been made in a Local Act, namely, the Maharashtra Municipalities Act 1965, on the lines of Section 62(3) of the Representation of the People Act. There also the need must have been felt by the Legislature that without making such a provision the votes of such a voter could not be excluded. If that was the intention of the Legislature so far as the Village Panchayat elections are concerned, such a provision also ought to have found place in the Village Panchayats Act: but there is no such provision either in the Act or the rules framed thereunder. The effect of this would naturally be that a person whose name appears in the voters' list for more than one ward and who is otherwise qualified to vote Will be entitled to vote in more than one ward, since there is no such prohibition laid down in the Act Mr. Deshpande, the learned counsel for the respondent No. 1, however, contends that such a prohibition must be implied in the Act from the various rules to which he has drawn our attention. He referred to the provisions of Section 13-A under which a person cannot be elected to more than one seat and from this he wants us to infer that since a person could not hold more than one seat in the Village Panchayat, he also could not be a voter for more than one ward in a Village Panchayat, that is, he could not vote for two candidates from two different wards. It is also urged that except in the case of a plural constituency, each voter must have one vote in the whole of the Village Panchayat and cannot have two votes. We cannot spell out any such result from the provisions of Section 13-A of the Act.

13. He then referred us to Rule 21(1) (iii), Rule 23(ii). Rule 29(2), Rule 33(1)(d) and Rule 2(2) of the Bombay Village Panchayats Election Rules, 1959. Rule 21 is made for 'the purpose of prohibiting the candidates or their agents from speaking or addressing any voters in any part of the polling station and whatever objections they have to make with respect to a particular voter, such objections have to be addressed to the Presiding Officer and the kinds of objections they can make are given in the three clauses under that Sub-rule. The one referred to by the learned counsel for the respondent No. 1 is Clause (iii) of Sub-rule (1) of Rule 21 which is to the effect; 'that he has already voted at the election'. Referring to the definition of 'Election' in Sub-rule (2) of Rule 2, the learned counsel argues that if a voter has voted at my place in the village for the election of the Village Panchayat, then an objection could be taken by the candidate or his agent so as to debar him from voting at any polling station in the village in that election. We are unable to read this meaning into Clause (iii) in Sub-rule (1) of Rule 21 aforesaid. It must be noted that these objections are to be addressed to the Presiding Officer concerned who presides over the polling station of a particular ward and any objection to the voter having already voted must be confined to the election at that particular polling station and must be made to the Presiding Officer of that polling station. For example, if a voter in the voters' list of Ward No. 4 has already cast his vote once in that polling station of Ward No. 4, then if he again comes to vote at the same polling station of that ward, an objection under Clause (iii) could be taken that he has already voted. This would not pertain to an objection to the Presiding Officer of a particular polling station that he has already voted at some other polling station in some other ward which is not in charge of that Presiding Officer. The objection must, therefore, be confined only to that polling station 60 that a person at the particular polling station cannot vote more than once.

14. The other provision referred to was Sub-rule (1) of Rule 23 together with Rule 33(1)(d). Rule 23(1) provides for recording of votes and under Sub-rule (i) every voter is entitled to give as many votes as there are seats for filling which votes are to be taken in each ward, but no voter shall give more than one vote to any one candidate; whereas Clause (d) of Rule 33(1) provides for rejection of ballot papers contained in the ballot box it a voter has recorded more votes than he is entitled to give or has recorded more than one vote for any one candidate. We do not see how it can be implied from these rules that a voter whose name is included in the voters' lists of more than one ward cannot record his votes in those wards. Sub-rule (1) of Rule 23 provides for a case of a plural constituency and it says that in such a constituency or such a ward a voter will have as many votes as there are seats. Thus if there are three seats, three candidates could be elected from a particular ward and every voter will have three votes. It lays down a further prohibition that such a voter, though he has got three votes, cannot cast all the three votes to a single candidate. He can only cast one vote in favour of one candidate. This Clause does not, therefore, contemplate a case which is before us. Similarly, Clause (d) of Rule 33(1) also does not help the respondent No. 1. This clause only shows that a voter cannot record more than one vote for one candidate. It also provides that if in a particular ward he has got only one vote, he cannot record more than one vote at that election for one candidate or for different candidates. This also has no bearing on the question that is before us. Here, Bainabai by reason of the inclusion of her name in the voters' list of Ward No. 1 has a vote for that ward. Similarly, by reason of the inclusion of her name in ward No. 4 she has a vote in that ward and she could vote in both the wards unless there is a specific bar and if there was any such bar, then she could have exercised a choice of voting in either of these two wards. To such a case either Rule 23 or Rule 33 does not apply.

15. Reference was then made to Rule 29(2). This rule in fact provides for the challenging of votes by a candidate or his election agent and it provides against personation at voting. If a candidate or his agent makes a challenge that any person applying for a ballot paper and claiming to be a particular voter is not that person entered in the list but is personating for him and when such a challenge is made, then he is to be confronted by the Presiding Officer under Sub-rule (2) of Rule 29. He is required to enter his name and address in the list of challenged votes in Form 'D'. He also may be required to produce evidence of identification. It however, the alleged voter refuses to comply with such requisition, he shall not be permitted to vote. If he complies with the requisition under Sub-rule (1) of Rule 29, then he is questioned by the Presiding Officer and after Riving the answers as required by Sub-rule (1) he is allowed to vote after he has been warned of the penalty for personation. The two questions that are to be asked to him are (1) whether he is the person named in the list and (2) whether he has voted at the said election in the ward or in any other ward. If he answers the first question in the affirmative and the second question hi the negative, then alone he is allowed to vote after he has been warned of the penalty for personation. From the last portion, namely, the negative answer to the question whether he has voted at the election in the ward or 'in any other ward' (underlining (here in ' ') ours), the learned counsel for the respondent No. 1 wants us to infer that a voter can. vote only in one ward and not in more than one ward, because, according to him, the ballot paper is to be given to such a person only on his declaring that he has not voted either in that ward or in any other ward. This rule, in our opinion, only provides for finding out as to whether the particular voter is a genuine voter for that ward or is personating for some other person. For example, there may be two different persons in the same ward or the same village in different wards bearing the same name. Names of both these individuals are entered in the voters' list, each of them having a right of vote. Let us say, they are A and B. Now, A records his vote for himself and taking advantage of the similarity of the name and description also wants to record the vote in place of B. This would amount to personation for B. When anybody knowing A takes an objection then the Presiding Officer has to follow the procedure laid down in this rule. Such a precaution has to be taken to prevent personation as far as possible. If however, there is only one person of that name whose name is entered in the voters' list of more than one ward, either by mistake or because he may have some connection with each ward and he records his vote in each of those wards, it could not be called a case of personation. The whole Rule 29 deals with the cases of personation at a voting and has nothing to do with the right of a voter to vote in a particular ward. We do not see, therefore, that from Sub-rule (2) of Rule 29 it can be implied, much less necessarily, as is suggested by the learned counsel on behalf of the respondent No. 1, that a person whose name is in the voters' list of more than one ward can only record his vote only in one ward and not two. It would thus be found that neither there is any express provision debarring a person I from voting in more than one ward if his name is included in the voters' list of those wards, nor can such a provision be implied from the rules or the sections of the Bombay Village Panchayats Act. We are, therefore, of the view that the vote of Smt. Bainabai Kanekar could not have been excluded by the learned Civil Judge on scrutiny. If the vote of Bainabai is taken as a valid vote for the election of ward No. 4, then the petitioner and the respondent No. 1 each got 87 votes and the votes of both these candidates being equal, lot had to be drawn and it was so drawn. In the lots the petitioner was favoured and under the relevant rule, one more vote has to be counted for him and as such he was rightly declared elected by the Returning Officer.

16. The petition, therefore, must succeed and is allowed in terms of prayer Clause (a). We accordingly quash the order of the learned Civil Judge dated 2-5-1968 and maintain the result declared by the Returning Officer on 13-4-1967.

17. The point on which the petitioner succeeds was not, however, taken by him either before the Returning Officer or the Civil Judge or before us by this petition, nor was it argued before us, but it was in the course of the discussion in the arguments that it was found that this point has an important bearing on the case. In view of this we do not allow any costs to the petitioner even though he succeeds.

18. Petition allowed.


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