G. Mehrotra, J.
1. This is an application under Article 226 of the Constitution praying that the order passed by the Sub-divisional Officer dismissing the petition filed by the applicant under Section 12-C of the Panchayat Raj Act challenging the election of the opposite party No. 3 as the Fradhan be quashed.
2. The facts briefly are that the petitioner and the opposite party No. 3 were the two rival candidates for the office of Pradhan. Both of them received 109 votes each. One vote was received in favour of the petitioner through post. The Returning Officer rightly rejected that vote inasmuch as there was nothing in the rules which authorised the casting of the vote by post.
The result was that both the candidates obtained 109 votes. The Presiding Officer acting on the instructions from the Assistant Returning Officer drew the lot and as a result the lot was drawn in favour of the present petitioner. It is asserted by the petitioner that the Presiding Officer then announced that the petitioner had been duly elected but there was no declaration of the results by the Returning Officer as contemplated under Rule 19-I of the Rules framed under, the Act.
It was pointed out to the Returning Officer that under the provisions of Rule 19-H it was the Returning Officer who could have drawn the lot and he was of the opinion on the reading of the said rule that it was so. He therefore drew the lot again and this time it was drawn in favour ofl the opposite party No. 3; thereafter he duly declared the results under Rule 19-1 in favour ofl the opposite party No. 3.
The petitioner then filed an election petition, challenging the election of the opposite party No. 3 before the Sub-Divisional Officer under Section 12-C and contended that the Presiding Officer having drawn the lot once on the instructions received from the Assistant Returning Officer it will be deemed to have been the act of the Returning Officer himself and the Returning Officer had no right to undo that and draw a lot second. time.
The Sub-Divisional Officer did not accept this contention and came to the conclusion that the Jot had to be drawn by the Returning Officer himself. He had no power to ask the Presiding Officer to do so and consequently the first lot drawn by the Presiding Officer even though on. the instructions received from the Returning Officer was no drawing of the lot at all in the eye of law and the Returning Officer could draw the lot second time.
There was therefore no breach of any rules which materially affected the results as contemplated under Section 12-C and the petition was rejected by him. He has also towards the end of his order remarked that the Presiding Officer had acted very irresponsibly and also not in proper manner which thus caused some suspicion that the conduct of the Presiding Officer was not above board.
But, however, the petition was not dismissed on any clear finding that the act of the presiding Officer in drawing the lot first time was mala fide. Mr. Dwivedi has very strenuously contended that the drawing of the lot is a ministerial act and it could be delegated to any other officer by the Returning Officer. It was under his instructions that the Presiding Officer drew the lot and if the delegation is not invalid it cannot be said that the Presiding Officer's action in drawing the lot was a nullity which could be ignored by the Returning Officer.
If the drawing of the lot was only a ministerial act and it could be delegated it was also an act which could have been cancelled by the Returning Officer himself and if he in the circumstances of the present case thought that the power was not properly exercised under the rules by the Presiding Officer he could always set aside the first proceeding for lot and draw it again.
Mr. Dwivedi's argument, however, was that as under Rule 19-H a right accrues to a candidate when a lot has been drawn inasmuch as a vote is added to his votes it is not open to the Returning Officer after having once exercised that power to recall the whole proceedings and to exercise the power afresh. Rule 19-H of the Rules framed under the Act provides as follows:
'If an equality of votes is found to exist between any candidates, and the addition of one vote will entitle any of those candidates to be declared elected, the Returning Officer shall forthwith decide between those candidates by lot, and proceed as if the candidate on whom the lot falls had received an additional vote.' The power to decide after drawing the lot rests upon the Returning Officer and such a decision could not be taken by the Presiding Officer. The decision had ultimately to be taken by the Returning Officer and if before taking any such decision and declaring the results the Returning Officer thought that the ministerial act of drawing the lot was not done properly or by a proper authority it was always open to him to recall the whole proceedings and draw the lot afresh in the exercise of his powers under Rule 19-H.
Mr. Dwivedi's argument was that as soon as the lot is drawn the Returning Officer is bound forthwith to decide between the two candidates and to proceed upon the presumption that the candidate in whose favour the lot had been drawn had received the additional vote. That is a legal consequence which flows from the act of drawing the lot and it would be deemed as' if a person in whose favour the lot had been drawn had received the additional vote.
If once this right had accrued in favour of his client that he had received one more additional vote it was not open to the Returning Officer to act in a manner so as to affect that right. I do not think there is substance in this contention. No right accrued in favour of the petitioner till his results were declared. If the results had been declared in his favour it may have been open to him to say that a right had accrued in his favour and that right could only be set aside by an election petition under Section 12-C, but till the actual declaration is made by the Returning Officer it was always open to him to retrace his steps and take proper proceedings for drawing of the lot,
At the highest the only right which may I have accrued to the petitioner was to ask the Returning Officer to add one more vote to the votes received by the petitioner but he having not done that and allowed the Returning Officer to draw the lot again it is not now open to him to come forward and say that the Returning Officer had no power to draw the lot again.
3. Moreover the only ground on which 'the petitioner could succeed under Section 12-C of the Panchayat Raj Act would have been if there was any violation of the provisions of the rules which materially affected the results of the election. It cannot be said that when the Returning Officer drew the lot again he committed breach of any rules or of the provisions of the Act.
As soon as it is stated that the act of drawing a lot is a ministerial act there is an implied power to recall that proceeding and to draw the lot afresh and it cannot be said that the Returning Officer when drew the lot a second time acted in violation of any of the provisions of the statute or rules framed thereunder.
4. There is therefore no force in this petition and it is rejected; but in the circumstances of the case I make no orders as to costs.