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Madhavrao Tatyasaheb Ghatge Vs. Collector, District Kolhapur and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 85 of 1964
Judge
Reported inAIR1965Bom217; (1964)66BOMLR784; ILR1965Bom184; 1965MhLJ146
ActsPanchayats - Maharashtra Zilla Parishad and Panchayat Samities Act, 1962 - Sections 2, 12, 14, 14(2), 27(5), 27(6) and 27(7); Maharashtra Zilla Parishads Election Rules, 1962 - Rules 11(1), 37, 38 and 43(1)
AppellantMadhavrao Tatyasaheb Ghatge
RespondentCollector, District Kolhapur and ors.
Appellant AdvocateM.V. Paranjpe, Adv.
Respondent AdvocateS.B. Bhasme, Adv. and ;V.H. Gumaste, Addl. Govt. Pleader
Excerpt:
maharashtra zilla parishads election rules, 1962, rules 38, 43 - maharashtra zilla parishads and panchayat samitis act (mah. v of 1962), sections 27(7), 14--representation of the people act (xliii of 1951), section 100--election started three hours before notified time--petitioner or his polling agents not present till the time notified--validity of election--whether rules 38 & 43 mandatory--applicability of section 27(7) of mah. v of 1962.;rules 38 and 43 of the maharashtra zilla parishads election rules, 1962, are mandatory and an election held in breach of these rules is invalid and liable to be set aside.;where an election was started three hours before the time which was notified by the collector under section 14 of the maharashtra zilla parishads and panchayat samitis act, 1961,.....gokhale, j.(1) this petition under article 226 of the constitution challenges the order made by the assistant judge, kolhapur, by which he dismissed the petition filed by the petitioner seeking to have the election of respondent no. 5 set aside on various grounds.(2) the election in question was of the panchayats samiti of the sidhanerli electorate group from sangav gat. the petitioner as well as respondents nos. 5 to 9 were the contesting candidates at the said election. the election was held on 31st july 1962. the date of the election was fixed by a notification issued by the collector of kolhapur as required by s. 14 of the maharashtra zilla parishad and panchayat samitis act, 1962 (hereinafter referred to as 'the act'). the time for the election as notified in the notification issued.....
Judgment:

Gokhale, J.

(1) This petition under Article 226 of the Constitution Challenges the order made by the Assistant Judge, Kolhapur, by which he dismissed the petition filed by the petitioner seeking to have the election of respondent No. 5 set aside on various grounds.

(2) The election in question was of the Panchayats Samiti of the sidhanerli Electorate Group from Sangav Gat. The petitioner as well as respondents Nos. 5 to 9 were the contesting candidates at the said election. The election was held on 31st July 1962. The date of the election was fixed by a notification issued by the Collector of Kolhapur as required by S. 14 of the Maharashtra Zilla Parishad and Panchayat Samitis Act, 1962 (hereinafter referred to as 'the Act'). The time for the election as notified in the notification issued by the Collector was from 11 a.m to 5 p.m. The votes were counted on 3rd of August 1962 and it was found that the petitioner and respondent No.5 had polled an equal number of votes, viz . 17 votes each. The Returning Officer of the Panchayat Samiti. who is respondent No. 2 to this petition, drew lots as required by section 26 of the Act and declared that respondent No.2 was challenge by the petitioner by filing an application before the learned Assistant Judge at Kolhapur, Under sec.27 (1) of the Act. Several contentions were raised in the petition. It was alleged that respondents Nos. 2, 3 and 4 who were the officers concerned with the conduct of the election, had acted in collusion with respondent No.5 and had , in fact, commenced the election at 8 a.m on the day of the election without informing either the petitioner or his agents. According to the allegation, the election having commenced three hours before the time fixed by the Collector for the commencement of the election , the votes which were cast during this period were illegal votes and this illegality had materially affected the result of the election. There were allegations in the petition that respondent No.5 has resorted to corrupt practices at the time of the election. Similarly, it was alleged that during the period from 8 a.m. to 11 a.m. such voters as came and exercised their right of voting were influenced by respondent No.5 had resorted to corrupt practices at the time of the election. There were allegations in the petition that respondent No.5. It is unnecessary to refer to the various other allegations which were made in the petition. It is unnecessary to refer to the various other allegation which made in the petition. The concerned in the present petition are (1) that the election started three hours before the time fixed by the Collector for the commencement of the election, and (2) that the polling agents of the petitioner could not be present during the time between 8 a.m. and 11 a.m. and the respondents Nos. 1 to 3 in collaboration with respondent No. 5 had deliberately refrained from informing the petitioner or his polling agent that the election would commence at 8 a.m.

(3) It appears that at an earlier stage in the conduct of the election petition, a preliminary objection was raised as to be maintainability of the application . The objection was that the election petition was not legally or validly presented as required by the Act and that preliminary objection, it appears, found favour with the learned Assistant Judge. The view taken at that stage, by the learned assistant Judge after the matter was sent back to him for disposal in accordance with law.

(4) The learned Assistant Judge framed as many as 15 issues. He found that the allegation of collusion between respondents Nos. 1 to 3 and No.5 was not proved. He also found that the commencement of the election at 8 a.m. was in breach of the rules but he did not accept the contention that such votes as were cast between 8 a.m. and 11 a.m. were illegal votes. Holding that the breach of the rules did not materially affect the result of the election he dismissed the petition. That is how the petitioner is now challenging the order dismissing the petition made by the learned Assistant Judge.

(5) Although the various contentions referred to by us were raised by the petitioner before the learned Assistant Judge, arguments before us were confined only to two points. It was common ground that in as much as the election had started at 8 a.m. , i.e., three hours before the time which was notified by the Collector, there was a breach of the rules. It was also common ground that neither the petitioner nor his polling agents were present at the time nor his polling agents were present at the time when polling agents were present at the time when polling commenced at 8. a.m. on 31-7-1962; that 26 voters had in all voted at Pimpalgaon and in the actual counting of votes both the petitioner and respondent No.5 was declared elected is also not disputed before us. Mr. Paranjpe, who appeared for the petitioner, contended that the rule requiring the election to commence at the time specified in the notification was a mandatory rule and breach of that rule by itself was enough to render the election illegal and invalid . He also contended that even if it were held that it was not a mandatory rule, it was a rule incorporated in the rules framed under the Act with a view to preserving the purity of elections and any substantial departure from that rule must be considered to be sufficient to render the election invalid. IN the alternative he said that there was material in the evidence which showed that respondents Nos. 1 to 3 had colluded with respondent No.5 and the election, held in breach of the rules, as a result of such collusion, must be held to be illegal. One more contention which is material, and which must be stated, is that the rules require that no ballot paper shall be handed over to any voter before the time notified. It is also necessary that either the candidates or their polling agents should be enabled to remain present when the ballot boxes are kept open for polling at the commencement of the election, and the sealing of the ballot boxes must be done in the presence of the candidates or their polling agents, if they desired to be present. On these grounds it is contended that even if no corrupt practice is established, when breach of the relevant rules in question has been proved the election should be set aside. The learned Assistant Judge has found that the petitioner, who had challenged the result of the election, had not given sufficient evidence to establish that the result of the election , would have been materially affected if a breach of the rules, which are mandatory, or even in the case of a substantial breach of rules which are directory, it is not necessary to establish that by such breach the result of the election would have been materially affected. It was his submission that the learned Judge was in error in assuming that the onus of proving that the result of the election was materially affected was on the petitioner. According to him, if it is shown that there was a breach of the rules in the conduct of the election, the candidate, who wants to support the result of such an election, must establish that the result of the election was not materially affected by such a breach of the rules.

(6) In order to appreciate these contentions it would be necessary first to refer to the relevant provisions of the Act as well as the rules framed thereunder. Section 27 of the Act provides for an enquiry by a Judge to determine the validity of elections. Sub section (1) of that section provides that if the validity of any election of a Councilor or the legality of any order made or proceedings held under section 26 is brought in question by any person qualified to vote at the election to which such question refers, he may at any time within the specified period after the date of the declaration of the result of the election or the dare of the order or proceeding, apply to the District Judge of the District Judge he may pass an order confirming or amending the declared result of the election or setting aside the election. Sub section (5) is material and is as follows:

'(5) (a) if on holding such enquiry , the Judge finds that a candidate has, for the purpose of election, committed a corrupt practice within the meaning of sub-section (6), he shall declare the candidate disqualified for the purpose of that election and of such fresh election as may beheld under sub-section (2)

and shall set aside the election of such candidate if he has been elected.,

(b) If in any case to which clause (a) does not validity of an election is in dispute between two or more candidates, the Judge , after a scrutiny and computation of the votes recorded in favour of each candidate, is of opinion that in fact any candidate in whose favour the declaration is sought has received the highest number of the void declare the candidate in whose favour the declaration is sought, to have

been duly elected:

Provided that, for the purpose of such computation no vote shall be reckoned as valid if the Judge finds that any corrupt practice was committed by any person, known or unknown in giving or obtaining it.

Provided further that, after such computation if an equality of votes is found to exist between 'any candidates and the addition of one vote will entitle any candidate to be declared elected, one additional vote shall be added to the total number of valid votes found to have been received in favour of such candidate selected by lot drawn in the presence of the Judge in such manner as he may determine'.

Sub-section (6) with certain variations adopts the definitions of corrupt practices as specified in Section 123 of the Representation of the People Act. Then again sub-section (7), which is material, is as follows;

'If the validity of any election is brought in question only on the ground of an error made by the officer charged with carrying out the rules made in this behalf under sub-section (2) of section 14 of an irregularity or informality not corruptly caused, the Judge shall not set aside the election'.

We have quoted the material parts of this section providing for an enquiry by a Judge for the determination of the validity of an election to the extent to which it is relevant for the purpose of this petition. Sub-section (2) of purpose of this petition. Sub-section (2) of Sec.14 empowers the state Government to make rules for the conduct of elections. It requires that subject to the provisions of sections 15, 17 and 18 the election shall be conducted in accordance with these rules.

(7) In exercise of the powers conferred by clauses (i) and (iii) of sub-section (2) of section 274 read with sub-section (2) of S. 9 and S. 14 of the Act, the government of Maharashtra Zilla Parishads Election Rules 1962 (hereinafter referred to as 'the Rules'). These Rules provide for the conduct of elections held under the Act. They prescribe an administrative machinery for the conduct of elections and the rules in Chapter III relates to the conduct of the elections. Sub-rule (I) of rule 11, which provides for the fixation of the various stages of an election, is as follows:

'When fixing the date for holding up election under section 14, the Collector shall by order in Form I, appoint-

(a) the last date, time and place for making nominations which shall not be later than fifteen days before the date fixed for the poll;

(b) the date, time and place for the scrutiny of nominations, which shall be the day next following the last date appointed for making nomination:

(c) the time during which the poll shall be taken on the date fixed for the poll under section 14; and

(d) the date or dates, time and place for the counting of votes'.

The other parts of this rule are not relevant for our purpose. The order made by the Collector under rule 11 is required to be published in the manner prescribed in rule 12. The other rules in this Chapter provide for such other connected matters as the nomination of candidature dates, deposits to be made by candidates scrutiny of nominations withdraw of candidature and appeals against orders accepting or rejecting nominations papers. Then R. 24 in Ch. IV provides for the appointment of election agents and rule 25 provides for the appointment of polling agents. Under S. 25 any candidate at an election at which a poll is to be taken or his election agent may appoint one agent and two relief agents to act as polling agents of such candidate at each polling station Chapter V provides for the general procedure of an election. It is not necessary for the purposes of this petition to refer to this procedure. Some of the rules in chapter VI however, which deal directly with the poll and the voting at Electoral divisions, are relevant. Rule 37 enables the Presiding Officer to regulate the number of voters to be admitted at any one time inside the polling station but specifically excludes the admission, inside the polling station of all persons, other than those mentioned in clauses (a) to (g) of that section. Under clause (d) the candidates, their election agents and subject to the provisions of rule 25, one polling agent of each candidate is entitled to be admitted inside the polling station. Rule 38 is again very material and must be reproduced in full. It is thus:

'38. Preparation of Ballot Boxes for poll:

(1) Where a paper seal is used for a securing a ballot box the Presiding Officer shall affix his own signature on the paper seal and obtain thereon the signatures of such of the polling agents present as are desirous of affixing the same.

(2) The Presiding Officer shall thereafter fix the paper seal so signed in the space meant therefor in the ballot box and shall then secure and seals the box in such manner that the slit for the insertion of ballot paper there into remains open.

(3) The seals used for securing a ballot box shall be affixed in such manner that after the box has been closed, it is not possible to open it without breaking the seals.

(4) Where it is nor necessary to use paper seals for securing the ballot box, the Presiding Officer shall secure and seal the ballot box in such manner that the slit for the insertion of ballot paper remains open and shall allow the polling agents present to affix, if they so desire, their seals.

(5) Every ballot box used at polling station shall bear labels both inside and outside marked with-

(a) the serial number, if any and the name of the electoral division;

(b) the serial number and name of the polling station;

(c) the serial number of the ballot box (to be filled in at the end of the poll on the label outside the ballot box only); and

(d) the date of poll.

(6) Immediately before the commencement of the poll, the Presiding Officer shall demonstrate to the poll, the presiding Officer shall demonstrate to the polling agents and other persons present that the ballot box is empty and bears the labels referred in sub-rule(5).

(7) The ballot box shall then be closed sealed and secured and placed in full view of the Presiding Officer and the polling agents. ' Rules 41 enables a polling agent to challenge the identity of person, the challenge being in the manner prescribed in the rule itself. It is on such a challenge being made that the Presiding Officer under R. 41 is required to hold a summary enquiry into the challenge. The Rule gives power to the Presiding Officer to reject the challenge under certain circumstances. Rules 42 provides for safeguards of against presentation. Sub-rules (1) and (2) rule 43 provide that no ballot paper shall be issued to any voter before the hour fixed for the commencement of the poll except, in the latter case, to those voters who are present at the polling station at the time of the closing of the poll. Since the question of any ballot papers having been issued after the hour fixed for the closing of the poll does not arise in this petition, it would be sufficient to reproduce sub-rule (1) which is as follows.

'No ballot paper shall be issued to any voter before the hour fixed for the commencement of the poll'

Then again sub-rule(5) of rule forbids any person in the polling station from noting down the serial number of the ballot papers issued to particular voter save as provided in sub-r. (4). The other rules provide for the manner in which the votes are to be recorded. Rule 49 which the votes are to be recorded. Rule 49 lays down the procedure for the sealing of the ballot boxes after the poll. Similarly rule 51 provides for the sealing of other packers consisting of documents connected with the election. The learned Assistant Judge has referred in his order to rules 53 and 54. Rule 53 provides for the adjournment of poll in emergencies and rule 54 provides for the procedure of such adjournment. We do not think that the questions which arise for determination in this petition have anything to do with these two rules since sub-rule (1) of rule 53 contemplates an adjournment if the processing at any polling station are interrupted or obstructed by any riot or open violence and such contingency is claimed to have arisen, nor a re we concerned with procedure prescribed for the adjournment of a poll which applies only is the adjustment is on the ground mentioned in R. 53. We need nor refer to the rules dealing with the counting of votes and other miscellaneous provisions relating to the conduct of election. We may point out that one of the principal objects of the rules is to secure the maintenance of secrecy of voting and rule 58 requires that the Returning Officer shall, before he commences the counting, read out the provisions of section 32 to such persons as may represent . Sub-section (1) punishable with imprisonment for a term which may extend to three months or with fine or with both. We referred to S. 32 and rule 58 to indicate that one of the principal objects of the Act and the rules framed there under is to secure secrecy of voting which alone can maintain a free and fair election.

(8) The learned Judge found that the election commenced at 8 a.m on account of a bona fide error on the part of the Presiding Officer and the petitioner was only utilising this error to have the election set aside. Having found that because of the election having found that because of the election having commenced before the notified time the petitioner or his polling agent could not remain present at the polling station till 10 a.m. the learned Judge observe that this error has not materially affected the result of the election. In this view unless the error was a result of corrupt practice as contemplated by clause (a) of sub-s. (5) of s.27 or unless the result of the election was materially affected, the election cannot be held to be invalid on the ground that there was a breach in the carrying out of the rules. He was a small margin and since the petitioner failed to prove that there was wither corrupt practice or that the result of the election was materially affected, the election could not be set aside. For coming to this conclusion the learned Judge principally relied on sub-section (7) of section 27 which we have already reproduced above.

(9) Reading sub-s. (7) of S. 27 there could be no doubt that the validity of an election cannot be brought in question only on the ground of an error made by the officer charged with carrying out the rules under sub-s (2) of section 12 and section 14 of the Act or on the ground of an irregularity of informality not corruptly caused. It is possible that some rules which are directory, substantial compliance with those rules may be enough and a mere error in the carrying out of such rules will not be sufficient to set aside an election. Similarly, so long as only an irregularity or an informality which is not corruptly caused is the basis of a challenge to an election, it may not be sufficient to set aside an election. A mandatory rule has however to be followed and non-observance of such a rule may affected the purity of an election and therefore the challenge in such cases is not only on the ground of that error but also on the principal ground that as a result in the election not being free or fair. In the case of directory rules, however, if in substance the rules as a whole have been complied with and no prejudice has ensured a technical breach of the rules may note sufficient to set aside the election.

(10) In Pratap Singh V. Shri Krishna Gupta : [1955]2SCR1029 the election which was held under the Central Provinces and Berar Municipalities Act was challenged on the ground that there was an omission to set out a candidate's occupation in the nomination form. The Act itself provided that anything done any proceeding taken under the Act could not be questioned on account of any defect or irregularity not affecting the merits of the case. Setting aside the view taken by the High Court that this omission was a failure to comply with the provisions set out in the various rules and was fatal, the Supreme Court observed as follows:

'we do not think that is right and we deprecate this tendency towards technicality; it is the substance that counts and must take precedence over mere form. Some rules are vital and go to the root of the matter; they cannot be broken; other are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as whole and provided no prejudice ensures; and when the Legislature does not itself state which is which judges must determine the matter and exercising a nice discrimination, sort out one class from the other along broad based, commonsense lines'.

Therefore, although it is true that every breach of rule may not be fatal to an election and breach of rules which are directory could be overlooked provided there is substantial compliance with the rules and no prejudice ensures, the same would not be true of rules which are vital and go to the root of the matter and which cannot therefore be broken. Apparently the learned Judge thought that the rule requiring the commencement of the election at the notified time was not a vital rule. He also seems to have taken the view that the absence of the polling agent of the candidate or the absence of the candidate himself as a result of the breach of the rule requiring the election to be commenced at the notified time was not vital and it was necessary that either a corrupt practice should have been proved or it should have been shown that the result of the election was materially affected. The question whether a rule is mandatory or directory would have to be determined on the frame of the rule itself in the light of the purpose which that rule is expected to serve for maintaining the purity of the election so that the election may be free and fair: It is necessary that all the rules must be read as a whole Rule 37 entitles the candidates or their polling agents to be admitted inside the polling stations. Rule 38 requires that were a paper seal is used for securing a ballot box the Presiding Officer shall affix his own signature on the paper seal and obtain thereon the signatures of such of the polling agents present as are desirous of affixing the same. After the signatures are so affixed the Presiding Officer has to fix the paper seal in the space meant therefore in the ballot box and has then to secure and seal the box in such manner that the slit for the insertion of ballot box shall be affixed in such a manner that after the box has been closed it is not possible to open it with our breaking the seals. More or less the same procedure is provided where it is not necessary to use paper seals. More or less the same procedure is provided where it is not necessary to use paper seals. Then again, the material part of this rule is that immediately before the commencement of the poll, the Presiding Officer shall demonstrate to the polling agents and other persons present that the ballot box is empty and bears the labels referred to in sub-rule (5) It is only after this has been done that the ballot box shall be closed, sealed and secured and placed in full view of the Presiding Officer and the polling agents. It is not difficult to understand the object underlying this procedure prescribed in rules 37 and 38. In order that ballot boxes may not be tampered with and in order that the officers who are charged with the duty of carrying out the election are beyond reproach as to their impartiality, the rules require that the candidates or their polling agents should be entitled to be present when this procedure is followed. Not only that, but they are entitled to be satisfied that the ballot box at the commencement of the election is empty and it is properly sealed and secured, is placed in full view of the Presiding Officer as well as the polling agents so that even after the procedure is followed, there is no tampering with ballot boxes. It may be true that while rules enable a candidate or a polling agent to be present, there is no compulsion on them to remain present. But the very fact that if they are present, they are entitled to be satisfied about any possibility of tampering of the ballot boxes not being there, shows that it is a vital right given to the candidates to secure a free and fair election by a procedure intended to be impartial and beyond suspicion. It is difficult to accept the argument made by Mr. Bhasme that these rules are not vital rules and a breach of these rules would be technical. What is vital in an election if not the assurance that it is going to be a free and fair election? Similarly nothing is more vital than the fact that such an election is held by maintaining secrecy of ballot. That is lays down that 'no ballot paper shall be issued to any voter before the hour fixed for the commencement of the poll'. With a view to securing the secrecy of ballot, rule 43 also require that, excepting the polling officer, who would record the serial number of a ballot paper against the entry relating to the voter in the copy of the list of voters set apart for the purpose, no person in the polling station shall note down the serial number of the ballot paper issued to particular voter. The polling agent is entitled to challenge the identity of a person claiming to be a particular voter and rule 41 lays down the procedure of determining any such challenge. If the election has commenced three hours before the time notified as a result of not present at the commencement of the election, it is obvious that neither the petitioner nor his polling agent could be satisfied at the commencement of the election that the ballot boxes were empty or that at that time they bore the labels referred to in sub-rule (5) of rule 38. Similarly during the absence of the petitioner and his polling agent, the petitioner lost the opportunity of exercising his right of challenging the identify of a voter and it is impossible after the election to contend that even such a challenge would not have affected the result of the election. We are of the view that rules 38 and 43 being vital to the conduct of a free and fair election are mandatory rules and if a breach of those rules is proved, as it has been proved in this case, it is not possible to say that the election held was a valid election. Even assuming for the sake of argument that these rules were considered as directory, it is nor possible to say that there was substantial compliance with these rules and that in effect, the requirements of these rules as a whole have been followed in the conduct of these elections. In Shyam Chand Basak V. Chairman, Dacca Municipality I.L.R. 47 Cal. 524: AIR 1920 Cal 669 a some what similar question had arisen for consideration by the Calcutta High Court. In that case both the commencement of the election as well as the closing of the election were not at the time notified. After a discussion of English and American cases the learned Judges observed as follows at P. 533 (of ILR Cal) : (at p.672 of AIR):

' The principles deducible from the cases mentioned above have been adopted in leading decisions in the United states. They recognise the distinction between mandatory and directory provisions. A provision as to the time of opening and closing the polls is considered directory on the general principle that a statutory provision is to be regarded as directory, if the directions given to accomplish a particular end may be violated and yet the given end be in fact accomplished and the merits of the case unaffected: On this principle it has been ruled that, where the law fixes the opening and closing of the polls at sunrise and sunset, the election should not be invalidated, merely because the polls were closed a few minutes after sundown, not thereby affecting the result in any manner. But this rule is applied only to what are called insubstantial departures from the law. where polls were opened from 1 P.M. until 6 P.M., instead of from one hour after sunrise to sunset, as required by law, the election was held invalid'.

(11) Now, even on this principle as deduced by the learned Judges the directions given in the rules in the present case being intended to accomplish the particular end, viz, the secrecy of ballot and a free and fair election, it is not possible to say that that end can be accomplished even though the rules may have been violated. In any case, when the election commenced three hours before the appointed time, it cannot be said that it was insubstantial departure from the law. When the departure is substantial compliance of the rules and the object sought to be achieved cannot be said to have been achieved even if a breach had occurred, it is not possible to say that the election is challenged merely on the ground that there was an error in the carrying out of the rules. It is clear that sub-section (7) of section 27 of the Act must refer to such breaches of the rules as are directory and intended object can be said to have been achieved even though a technical breach of the rules had occurred. It cannot apply to cases where there is a substantial departure from the rules and the very object of putting that rules on the statute book is defeated by a breach thereof, such an interpretation would defeat the very purpose for which the rules have been framed and we are unable to accept Mr. Bhasme's contention that the election having been challenged only on the ground that there was a breach if the rules it cannot be held to be invalid.

(12) In the course of his arguments Mr. Bhasme referred to a number of other cases which took the view that the result of the election was materially affected. Some of these cases related to the interpretation of section 100 of the Representation of the People Act. The material portion of that section in terms requires it to be established that the result of election, in so far as it concerned the returned candidate, had been materially affected by certain irregularities or illegalities having occurred. We need not reproduce that section nor is it necessary to refer to those cases since in section 27 of the Act such a provision is absent and the cases which dealt specifically with the interpretation of that section can be of no assistance for interpreting section 27 of the act. Same would be the position with regard to other cases dealing with different provisions is absent and the cases dealing with different provisions of other Acts. we may only refer to the passage from Halsbury's Laws of England, Vol. 14, 3rd Ed., p.. 150 to which Mr. Bhasme invited our attention . The passage referred to by him is a follows:

'An election ought not be held void by reason of transgressions of the law committed without any corrupt motive by the returning officer or his subordinates in the conduct of the election, if the tribunal is satisfied that the election was, not withstanding those transgressions, an election really and in substance conducted under the existing election law, and that the result of the election, was not and could not have been affected by those transgressions.'

But Mr. Bhasme ignored the very next observation from the same paragraph, which is as follows:

'If on the other hand, the transgressions of the law by the officials being admitted, the tribunal sees that the effect of the transgressions was such that the election was not really conducted under the existing election laws, or it is open to reasonable doubt whether those transgressions may not have affected the result, and it is uncertain whether the candidate who has been returned has really been elected by the majority of persons voting in elections, the tribunal is then bound to declare election void'.

In the present case the fact that the transgression of the rules has occurred is admitted. In consideration of the rules to which we have referred it cannot be said that the election was conducted under the existing election laws and there is ground for reasonable doubt that these transgressions may have affected the result, particularly in view of the fact that both the petitioner and respondent No.5 secured an equal number of votes and respondent No. 5 was declared elected only because of a lot drawn in his favour. We do not see how in the face of this position Mr. Bhasme's contention that the result of the election was not materially affected can be accepted.

(13) Mr. Gumaste, who appeared for the State, urged that the error was a bona fide error and since no corrupt practice was proved, such an error could not be the basis of a successful order in a petition under section 27. For the reasons which we have mentioned in discussing Mr. Bhasme's contention. If the error was vital and was as a result of the breach of a mandatory rule, it is immaterial whether or not such an error was the result or corrupt practice. It is true that the learned Judge has found that it was a bona fide error on the part of the Presiding Officer. Since that is a question of fact, we do not think it is necessary to arrive at any other finding. We may, however, point out that the explanation given by the Presiding Officer in his cross examination and other evidence that he thought that the time was 8 A.M. is most unconvincing. The Collector had issued a notification under section 14 of the Act fixing the dated on which polling would commence. The election was notified to commence at this polling station at 11 A.M. It is hardly possible to believe that the Presiding Officer, who was charged with the duty of conducting the election was obvious of this notification issued, under section 14 of the Act, by the Collector. Suggestions were made to the Presiding Officer had made common cause with respondent No.5 If it was necessary for use to consider the question of fact, it may be that on a consideration of the evidence we would have come to conclusion different from the conclusion to which the learned Judge has arrived. The minimum that can be said is that the Presiding Officer was, at any rate, thoroughly negligent in not abiding by the time fixed in the notification issued by the Collector. We are unable to accept Mr. Gumaste's contention that because no corrupt practice was proved a breach of the rules would not be sufficient to vitiate the election. Looking to the nature of the rules in question and the purpose which was sought to be achieved, we have no doubt that they were vital rules and a breach of those rules would result in the election being rendered invalid. The learned Judge has observed that the onus of proving that the result was materially affected lay on the petitioner. In the view which we have taken on the interpretation of the rules, it is not necessary for us to decide that question.

(14) In the view which we have taken, the order made by the learned assistant Judge dismissing the petition will have to be set aside. The election of respondent No.5 as a member of the Panchayat Samiti for Sidhanerli Electorate Group out of Sangav Gat is, therefore, set aside. Rule is made absolute. The petitioner will be entitled to get his costs from respondent No.5 and, in view of the conduct of respondent No.3 also from respondent No. 3.

(15) Rule made absolute.


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