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Prakash Vs. the Sub-divisional Officer, Hapur and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 310 of 1974
Judge
Reported inAIR1975All225
ActsUttar Pradesh Panchayat Raj Rules, 1947 - Rule 22(2) and 22KK ; ;Uttar Pradesh Panchayat Raj Act, 1947
AppellantPrakash
RespondentThe Sub-divisional Officer, Hapur and ors.
Appellant AdvocateA.B. Saran, Adv.
Respondent AdvocateR.S. Misra, Standing Counsel
DispositionAppeal dismissed
Excerpt:
civil - election - rules 22 kk and 22(2) of u.p. panchayat raj rules, 1947 - application filed for retirement from election cannot be called invalid just because date and time was not written on it - person making his thumb impression in presence of presiding officer can not be called invalid - rule 22 kk lays down when all the candidate except one wants to get retire from election they only needs to make a joint application. - - the polling was to take place on 28th may, 1972. the appellant as well as respondents nos. and (b) such adhikari or adhyaksh on being satisfied as to his identity has attested the mark as being the thumb-mark of that person......all contesting candidates except respondent no. 4 ram singh tyagi filed an application before the presiding officer retiring from the election. the presiding officer stopped the commencement of the poll and transmitted the application to the returning officer. the returning officer rejected the application on the grounds:(a) that the application did not contain the date, and time on which it was given to the presiding officer;(b) that the presiding officer did not mention that he had stopped the poll as required under rule 20-kk of the rules; and(c) that on the application a thumb-impression purporting to be of prakash has not been attested or verified by the presiding officer. thereupon fresh elections were held on 7th june, 1972. at this election the appellant prakash obtained highest.....
Judgment:

Satish Chandra, J.

1. The election to the post of Pradhan of the Gaon Sabha, Dhanora, Tahsil Hapur, district Meerut, was notified to be held under Section 11-B (1) of the U. P. Panchayat Rai Act. The polling was to take place on 28th May, 1972. The appellant as well as respondents Nos. 4 to 9 were the contesting candidates. On 28th May, 1972 all contesting candidates except respondent No. 4 Ram Singh Tyagi filed an application before the Presiding Officer retiring from the election. The Presiding Officer stopped the commencement of the poll and transmitted the application to the Returning Officer. The Returning Officer rejected the application on the grounds:

(a) that the application did not contain the date, and time on which it was given to the Presiding Officer;

(b) that the Presiding Officer did not mention that he had stopped the poll as required under Rule 20-KK of the Rules; and

(c) that on the application a thumb-impression purporting to be of Prakash has not been attested or verified by the Presiding Officer. Thereupon fresh elections were held on 7th June, 1972. At this election the appellant Prakash obtained highest number of votes and he was duly declared an elected Pradhan.

2. Respondent No. 4 filed an election petition, particularly on the ground that because of the withdrawal of the candidates on 28th May, 1972 he was the only contesting candidate left in the field; so he was entitled to be declared elected. The subsequent polling held on 7th June, 1972 was void and ineffective.

3. The Election Tribunal upheld the validity of the joint application made by the various contesting candidates on 28th May, 1972 and held that respondent No. 4 was entitled to be declared elected as Pradhan. The subsequent polling held on 7th June, 1972 was held to be illegal. On this view the election petition was allowed, the election of the appellant was set aside and respondent No. 4 was declared to be elected Pradhan.

4. Aggrieved the appellant filed a writ petition. The learned Single Judge held that the Election Tribunal had recorded a finding on the testimony of the Returning Officer which is corroborated by the entry in the election diary that at about 7 a.m. in the morning of 28th May, 1972 all the candidates except respondent No. 4 withdrew from the contest. He held that this is a finding of fact and does not suffer from any error of law. On this finding the respondent No. 4 was rightly declared elected. On this view the writ petition was dismissed. Hence the present appeal.

5. We enquired from the learned counsel whether there was any provision in the Act or the Rules requiring the Presiding Officer to mention in the application filed by a candidate for withdrawal from contest the date or time of its presentation. There is no such provision. Such an application cannot be held invalid merely on this ground. Further, the view of the Returning Officer that the application was invalid because the Presiding Officer did not mention that he had stopped the poll is equally without merit. None of the Rules require that the Presiding Officer should mention this fact on the application for withdrawal. It is admitted between the parties that the Presiding Officer had, in fact, stopped the poll after he had received the application for withdrawal.

6. The third ground upon which the application was rejected was that it bore the thumb-impression of Prakash appellant. The appellant was not illiterate. In fact he had signed his nomination paper with his own hand. The question is whether the application for withdrawal on which the appellant had put his thumb-impression instead of signature was valid.

7. Rule 22 (2) of the U. P. Panchayat Raj Rules reads :

'(2) For the purposes of these rules, a person who is unable to write his name, shall unless otherwise expressly provided in these rules, be deemed to have signed an instrument or other paper if--

(a) he has placed a thumb-mark on such instrument or other paper in the presence of the Nirvachan Adhikari or the Matdan Adhyaksh; and

(b) such Adhikari or Adhyaksh on being satisfied as to his identity has attested the mark as being the thumb-mark of that person.'

8. It will be seen that this Rule applies to a person who is unable to write his name. To such an illiterate or disabled person a special provision has been made for enabling him to sign an instrument. If a man is unable to write his name he may place his thumb-mark in the presence of the Presiding Officer and have the thumb-mark attested. For persons who are able to write their names on a document the Rule does not make a specific provision. The act of signing an instrument can be validly done either by writing out the name of the person in his own hand or by putting his thumb-impression. The putting of thumb-impression is recognised by law as a valid method of executing a document.

9. Rule 22-KK deals with retirement. It provides that where all the contesting candidates except one desire to retire from the contest at the election, they may make a joint application to that effect as hereinafter provided. The application is to be delivered by the contesting candidates to the Presiding Officer. This rule does not provide for any particular method in which a retiring candidate has to execute the application. All that this rule requires is that they may make a joint application. In other words each candidate was entitled to execute a joint application in any manner recognised as valid in law. If a particular candidate who is able to write does not choose to write his name on the application but wishes to execute the document by putting his thumb-impression it cannot be said that he has not made an application jointly with other candidates. In this view the application for retiring, to which the appellant has appended his thumb-impression as a mark of his consent to the joint prayer for retirement cannot be held invalid. The Election Tribunal was justified in upholding the validity of the joint application.

10. In the result the appeal fails and is accordingly dismissed with costs.


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