1. This is a petition by a defeated candidate in a municipal election to the Corporation of the city of Nagpur. The petitioner and respondents Nos. 2, 3 and 4 were candidates for election as councillor from ward No. 29 of the city of Nagpur. The election was held on June 11, 1957, between 8-30 a.m. and 4-30 p.m. Respondents Nos. 5 to 9 had also filed their nomination papers but had withdrawn before the date of election and they are made parties in this petition to obviate any formal objection. Respondent No. 2 was declared elected. He obtained 967 votes while the petitioner got 946 votes. The difference thus was only of 21 votes.
2. In the election petition filed by the petitioner under Section 428 of the City of Nagpur Corporation Act, the Second Additional District Judge, Nagpur, acting as the District Court declared 16 of these 21 votes invalid. Thus the difference in the votes obtained by respondent No. 2, the elected candidate, and the petitioner was only of 5 votes. The District Court held the election of respondent No. 2 valid.
3. Among other grounds, Mr. Phadke, appearing on behalf of the petitioner, has raised ground No. 11 in his petition which is to the effect that
The election officers illegally refused the right to vote to forty voters who had presented themselves before the Polling Officer before the closing time and hence by not giving an opportunity to these forty voters to vote the result of the election is materially affected.
4. On this question the District Court framed issue No. 5(a). It answered the issue in the negative. The District Court referred, among other witnesses, to the evidence of respondent No. 2 and it found that
These witnesses also stated that all of these voters were standing in the queue since before 4-30 P.M. Even the petitioner admitted that he did not find any voting papers with those persons and that he had only found them standing at booths Nos. 5 and 6 at about 4-30 P.M. and onwards...therefore hold that about 20 persons who had reached the polling station before 4-30 P.M. could not exercise their right of vote because they could not obtain ballot papers because the voters standing ahead of them had not also done so by that time.
Mr. Phadke accepts this finding, but he urges that on this finding, these 20 voters were illegally excluded from voting. In spite of the District Court's finding that some 20 voters were unable to exercise their franchise because of the rush of voters and because of others standing in. a queue ahead of them, it decided the issue in the negative, because it relied on the provisions of Rule 9(2) of the Rules framed under, Section 9(3) read with Section 420(2)(f).
Rule 9(2) runs as follows:
The polling officer shall close the polling station at the hour appointed in this behalf by the Chief Executive Officer under Rule 1, so as to prevent the admission thereto of any elector after that, hour, but any elector who has been furnished with a voting paper shall be allowed a reasonable opportunity to record his vote.
It is an admitted fact that the closing hour was 4-30 p.m. Now the view which the District Court took was that because 20 voters had not succeeded in obtaining the ballot papers by 4-30 p.m. the polling officer was bound to exclude them. In other words, the District Court read the clause occurring in Rule 9(2) 'so as to prevent the admission thereto of any elector after that hour' as implying that the polling officer was bound to have the door of the polling booth closed and exclude all voters from voting whether the voters had entered the booth or not unless they were already given a ballot paper.
5. Rule 9(2) is in two parts. The first part lays down the duty of the polling officer to close the polling station at the appointed hour i.e. at 4-30 p.m. so as to prevent voters from entering after that time. The second part lays down the duty of the polling officer to allow any elector who has received a voting paper a reasonable opportunity of recording his vote. The latter part presumably applies to all voters whether in or out of the polling booth, but with this part we are not immediately concerned. For the purposes of this petition we would point out that the rule does not say anything about persons who are inside the polling booth at 4-30 when the booth is closed. It also does not say that they shall be excluded from voting after 4-30 p.m.
6. Counsel for respondent No. 2 urged that that is the necessary implication to be drawn from the first part of the rule. He urged that there would be no sense in ordering the polling officer to close the booth at 4-30 p.m. and in also directing him to continue to permit voting. He also emphasized that the two clauses of the rule are connected by the word 'but' thus showing that they are in opposition to each other.
7. The first part of the rule itself states the purpose for which it was made viz. 'so as to prevent the admission thereto of any elector after that hour'. It does not at all deal with the cases of those voters who have already gained admission to the polling booth by 4-30 p.m. The word 'but' which has been used to connect the two clauses was, in our opinion, merely inserted to provide for the exceptional case viz. that even a voter who at 4-30 p.m. is not inside the booth by some fortuitous circumstance should be allowed to vote if he has been furnished with a voting paper.
8. We think that it is against all principles governing a right of free franchise that in the absence of any specific provision governing his ease, a voter who has entered the polling booth before the closing but who has, on account of rush of voters or voters standing before him in a queue, been unable to vote should not be allowed to do so simply because the polling officer is enjoined to prevent further admission after the closing hour.
9. We are thus unable to accept the interpretation of Rule 9(2) which prevailed with the District Court. On the other hand, it seems to us that if a voter had entered the polling booth, then, whether he had obtained a voting paper or not, he would be entitled to vote. Unfortunately, the finding reached by the District Court is not a finding on this precise point, but the District Court accepted the evidence of certain witnesses including that of the petitioner on this point. The petitioner in his evidence stated as follows:
At about 4-30 P.M. I had gone to booth No. 5. I found that there were 12 voters admitted inside the booth and who had not voted until then.
In para. 14 he further stated:
I did not find any ballot papers with those 8 to 10 persons.
The witness does not, of course, prove the exact number which had been excluded. That is otherwise proved. But he certainly proves that at least 12 voters were excluded though they were inside the polling booth at 4-30 p.m.
10. In our opinion, this evidence which was accepted by the District Court can only show that Rule 9(2) was not complied with. These persons were, therefore, illegally excluded from exercising their franchise. As we have indicated above, the difference in the votes received by respondent No. 2 and by the petitioner was only five. Therefore, if 12 voters were illegally excluded from the election, the result of the election would be materially affected. For these reasons, we are unable to sustain the finding of the District Court on issue No. 5(a). We set it aside and declare the election of respondent No. 2 Juned Alam void.
11. Rule 15(c) read with Rule 16 of the Rules framed under Section 420(3)(xviii) and (xix) of the Act enact that if an election is declared void, as we have done, the Court may either declare that a casual vacancy has been created, or that the applicant or any other candidate has been duly elected. The second alternative cannot be availed of by the petitioner in this case because it is impossible to say for whom the excluded voters would have voted. Therefore, the only proper order to pass in the present ease would be that the petition is allowed, the election is declared void and a declaration is made that a casual vacancy has been created in ward No. 29 of the City of Nagpur Corporation. We order accordingly.
12. In the circumstances there shall be no order as to costs throughout.