Skip to content


Ram Murti Vs. Kashi Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 2110 of 1980
Judge
Reported inAIR1981Raj258; 1981()WLN163
ActsRajasthan Panchayat and Nyaya Panchayat Election Rules, 1960 - Rules 25(2), 36, 41(1) and 77(7); Representation of the People Act, 1951 - Sections 123(7)
AppellantRam Murti
RespondentKashi Ram and anr.
Appellant Advocate R.N. Bishnoi, Adv.
Respondent Advocate I.J. Lodha, Adv.
DispositionPetition allowed
Cases Referred and Smt. Indira Nehru Gandhi v. Raj Narain
Excerpt:
rajasthan panchayat & nyaya panchayat election rules, 1960 - rules 25, 33, 36, 41 & 78--names & addresses of candidates and valid votes rejected not properly entered in return no. iv--no other evidence to prove that it has materially affected election result--held, it is not sufficient to set aside election.;the failure of the returning officer to set forth in return no. iv the names and the addresses of the candidates for whom valid votes have been cast and the number of valid votes rejected as invalid is not sufficient to set aside the election of the successful candidate in the absence of any reliable evidence from the side of non-petitioner no. 1 that such a failure has materially affected the result of the election so far as it concerned the successful candidate, i.e. the.....orderkalyan dutta, c.j. 1. this is a writ petition filed by ram murti under articles 226 and 227 of the constitution of india for issuance of a writ of certiorari or any other appropriate writ, direction or order for quashing the judgment marked ex. 16 dated october 30, 1980, which was passed by non-petitioner no. 2 and whereby the election petition filed by non-petitioner no. 1 was accepted,2. the writ petition arises under the following facts and circumstances:--election to the office of sarpanch of gram panchayat 83 lnp, tehsil padampur, district sri ganganagar, was held on february 5, 1978. the petitioner and kashi ram, non-petitioner no. 1, contested the election for the office of sarpanch. the petitioner received 868 valid votes and kashi ram, non-petitioner no. 1, secured 809 valid.....
Judgment:
ORDER

Kalyan Dutta, C.J.

1. This is a writ petition filed by Ram Murti under Articles 226 and 227 of the Constitution of India for issuance of a writ of certiorari or any other appropriate writ, direction or order for quashing the judgment marked Ex. 16 dated October 30, 1980, which was passed by non-petitioner No. 2 and whereby the election petition filed by non-petitioner No. 1 was accepted,

2. The writ petition arises under the following facts and circumstances:--

Election to the office of Sarpanch of Gram Panchayat 83 LNP, Tehsil Padampur, District Sri Ganganagar, was held on February 5, 1978. The petitioner and Kashi Ram, non-petitioner No. 1, contested the election for the office of Sarpanch. The petitioner received 868 valid votes and Kashi Ram, non-petitioner No. 1, secured 809 valid votes. As many as 43 votes were declared invalid. Consequently, the petitioner was declared elected to the office of Sarpanch by a clear majority of 59 votes. Kashi Ram, non-petitioner No. 1, thereupon, presented an election petition against the petitioner under Rule 78 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules, 1960, hereinafter referred to as the Rules, in the Court of the Munsiff, Karanpur, but the petition was, later on, transferred to the Court of Munsiff, Padampur, non-petitioner No. 2. It was alleged in the election petition by non-petitioner No. 1 that the Returning Officer committed serious irregularities in conducting the election by non-observance with the provisions of Rules 25, 36 and 41 of the Rules. It was further stated that the Returning Officer did not count the ballot papers in accordance with the Rules inasmuch as 15 ballot papers were declared invalid by fixing second seal on them in order to favour the returned candidate, i.e., the petitioner it was also alleged in para Number 4 (4) of the election petition that some ballot papers were wrongly counted in favour of the petitioner although the voters did not vote for him and some ballot papers were wrongly declared invalid, although they ought to have been counted in favour of non-petitioner No. 1.The non-petitioner No. 1 prayed to the Returning Officer for recounting of the votes, but he rejected the prayer without any sufficient ground. The non-petitioner No. 1 further alleged in para No. 1 of the election petition that the petitioner obtained the assistance of Madan Lal Patwari and Gram Sewak of the circle for furtherance of the prospects of his election and, in this manner, committed a corrupt practice because these officers openly canvassed for the petitioner and got a good number of votes polled in his favour.

3. The petitioner, in response to the notice of the election petition issued to him, appeared in the Court of Munsiff, Padampur, and filed his written statement wherein he denied all the allegations made against him in the election petition. The learned Munsiff, upon pleadings of the parties, framed the following 9 issues and proceeded to record the evidence of the parties:--

1- D;kfuokZpu vf/kdkjh us fu;e 25] 33] 36 rFkk 41 lgh vuqikyu ugha djds vogsyuk dhftldk pquko ifj.kke ij D;k izHkko gS ;kph

2- D;k ;kfpdk ds ifjf'k'V^^d** esa vafdr e`r ernkrkvksa ds uke ij QthZ er izR;kFkhZ ds i{k esa Myok;sa ;kph

3- D;k ifjf'k'V ^^[k** esavafdr ernkrk vo;Ld gSaa ftuds eri= voS/k gksus ls ekU; ugha gS ;kph

4- D;k ifjf'k'V ^^x** esavafdr ernkrk iapk;r {ks= tksM+fd;k ds fuoklh ugha gksus ls muds eri= voS/k gksusls ekU; ugha gS ;kph

5- D;k fuokZpu vf/kdkjh usizkFkhZ ds 15 oS/k erksa dks nqckjk fpUg yxk dj jn~n ;ksX; fd;k ;kph

6- D;k izR;FkhZ us jktLo vf/kdkjh]iVokjh gYok o xzke lsod dh lgk;rk ls ernkrkvksa dks Lo;a ds i{k esa ernku d:usizsfLr fd;k] D;kas ;kph

7- D;k ernkrk lwph ds lEcU/k esaorZeku pquko ;kfpdk ds }kjk pqukSfr ogh dh tk ldrh gS izR;kFkhZ

8- D;k fuokZpu vf/kdkjh usizzkFkhZ ds }kjk iqu% erx.kuk fd;s tkus dh izkFkZuk dks utj vankt fd;k o izkFkhZ iqu% erx.kuk djkus dk vf/kdkjhgS

9- vuqrks'k

Non-petitioner No. 1, i.e., the election petitioner examined himself and produced 9 witnesses, viz., Raja Ram AW 2, Bhajan Lal A W 3, Khumana Ram AW 4, Gandhi Singh AW 5, Bhagirath AW 6, Sohan Lal AW 7, Dana Ram AW 8, Bhajan Lal AW 9 and Mal Singh AW 10, in support of his case. The petitioner in rebuttal examined himself and produced Bhagwana Ram NAW 2, and Madan Lal Patwari NAW 3. The learned Munsiff after recording the evidence of the parties and hearing final arguments decided issues Nos. 1, 6 and 8 in favour of the election petitioner i.e., non-petitioner No. 1. The rest of the issues Nos. 2, 3, 4, 5 and 7 were decided in favour of the petitioner and against the election-petitioner. Accordingly, the learned Munsiff accepted the election petition filed by non-petitioner No. 1. The election of the petitioner to the office of Sarpanch was declared to be void. Aggrieved by the judgment of the learned Munsiff, dated October, 30, 1980, marked Ex. 16, the petitioner has moved this Court for exercise of its extraordinary writ jurisdiction on the following grounds:--

(1) that learned Munsiff committed an error apparent on the face of the record in deciding issue No. 1 in favour of the non-petitioner No. 1, because non-petitioner No. 1 has made no specific allegation in the election petition as to which of the ballot-box was not shown to him before it was put at the polling booth by the Returning Officer. It was necessary for the non-petitioner No. 1 to give out such specification. Apart from this, the non-petitioner No. 1 could not lead satisfactory evidence to prove non-compliance with the provisions of Rule 25 of the Rules by the Returning Officer;

(2) that the learned Munsif failed to consider an important fact that the non-petitioner No. 1 was required to prove under Rule 78 (d) of the Rules that the result of the election, so far as it concerned the petitioner, was materially affected by non-compliance with the provisions of the Act or of the Rules made thereunder. The non-petitioner No. 1 neither alleged in the election petition as to how the result of the election, so far as it concerned the petitioner, was materially affected, nor has he been able to prove the same. The learned Munsiff ought to have given a specific finding as to how the result of the election was materially affected by non-compliance with the provisions of the Act or of the Rules. He, without giving any finding, wrongly assumed that non-compliance with the Rules was proved;

(3) that there is absolutely no evidence on the record to come to a conclusion that the petitioner obtained any assistance from Madanlal Patwari and Bhagwana Ram Gram Sewak for the furtherance of the prospects of his election. In the absence of any cogent and reliable evidence, the learned Munsiff committed an error of law as well as of fact apparent on the face of the record in deciding issue No. 6 in favour of the respondent No. 1;

(4) that the learned Munsiff also failed to consider the other important fact that the non-petitioner No. 1 could not succeed in proving that the alleged corrupt practice was committed by the Patwari and the Gram Sewak with the consent or connivance of the petitioner. There is also no evidence to prove that the result of the election has been materially affected in so far as the petitioner is concerned on account of any corrupt practice committed in the interests of the petitioner by the Patwari and the Gram Sewak and the learned Munsiff committed an error apparent on the lace of the record in deciding issue No. 8 in favour of non-petitioner No. 1, because the inspection of the ballot papers could not be granted as a routine because of vague allegations made by non-petitioner No. 1 in his election petition.

4. I have carefully perused the record and heard Mr. R. N. Bishnoi, learned counsel for the petitioner, and Mr. I. J. Lodha, Advocate, appearing on behalf of non-petitioner No. 1. Nobody has appeared on behalf of non-petitioner No. 2.

5. The first ground on which the decision of the learned Munsiff, i.e., the Election Tribunal has been assailed before me is that the result of the election in so far as it concerned the Returned candidate, i.e., the petitioner was materially affected by non-compliance with the provisions of Rule 25 of the Rules. Before dealing with the question whether there was any such non-compliance with the provisions of Rule 25, I consider it necessary to reproduce the Rule which reads as follows:--

'25. Commencement of poll:-- (1) The poll shall commence at the hour appointed for such commencement.

(2) Immediately before such commencement, each polling officer shall --

(i) show every ballot box to such of the candidates as may be present at the time of the verification of the fact that it is empty.

(ii) thereafter lock the same;

(iii) place a seal thereupon in such manner as to prevent its being opened or unlocked without breaking the seal, and

(iv) place it within his view.'

From a bare reading of Sub-rule (2) of this Rule, it is obvious that the candidates should be entitled to be satisfied that the ballot box immediately before the commencement of the poll was empty and it was properly locked and sealed in such manner as to prevent its being opened or unlocked without breaking the seal. Sub-rule (2) further requires that after it is closed and sealed it is placed in full view of the polling officer, so that even after the procedure is followed, there is no chance of tampering with the ballot box. It is no doubt true that there is no compulsion on a candidate to remain present at the time of the verification of the fact that the ballot box is empty, but if the candidate is present the polling officer is bound to satisfy him that the ballot box, at the time of commencement of the election, is empty and it is properly locked and sealed and placed within the view of the polling officer, in the present case the grievance of non-petitioner No. 1 before the Tribunal was that the polling officer did not show the ballot boxes to him nor did he lock or seal the same in his presence and so the possibility of tampering with the ballot box could not be ruled out altogether. The non-petitioner No. 1 has examined himself and produced witnesses in support of his above allegation, but, in my opinion, the evidence produced in this behalf is far from being satisfactory. Kashi Ram, election petitioner, stated in his deposition before the learned Munsif that votes for Sarpanch were polled at two polling booths. At the first polling booth voters of wards Nos. 1 to 5 had polled their votes, while at another booth, voters of 5 wards Nos. 6 to 10 had come to cast their votes. Kashi Ram furtherstated that when he went to the first polling booth, he saw ballot boxes lying there. Thereupon, he asked the Polling Officer to show the ballot boxes and to seal them in his presence, but the polling officer did not show to him the ballot boxes and did not seal them in his presence, while at another polling booth, the ballot boxes were shown to him for verification that they were empty and, thereafter, were locked and sealed properly by the polling officer. Kashi Ram further stated that at the first polling booth a second ballot box was kept at about 3 p. m. but that ballot box also was not shown to him for verification that it was empty, nor was it sealed m his presence. Kashi Ram was cross-examined on this point before the Tribunal and was confronted with his election petition in which he did not state that the first ballot box at booth No. 1 was neither shown to him for verification that it was empty, nor was it sealed in his presence. When confronted with his election petition, he could not offer any reasonable explanation why this material fact was not mentioned in the election petition. In his cross-examination. Kashi Ram cleary admitted that at the time of putting second ballot box at booth No. 1 he was not present there and had reached there after half an hour or quarter to an hour. As indicated above, the polling officer is required under Clause (i) of Sub-rule (2) of Rule 25 of the Rules to show every ballot box to such of the candidates as were present at the time. As Kashi Ram, according to his own admission, was not present at the time when a second ballot box was kept at booth No. 1 and had reached there after half an hour or so, the polling officer was not required to wait for him to show the ballot box for verification that it was empty. Raja Ram AW 2 who was the polling agent of Kashi Ram at booth No, 1 stated before the Munsiff that when the ballot box was kept at booth No. 1, it was already sealed. He, thereupon, asked the polling officer to show the ballot box to him for verification that it was empty, but the polling officer refused to do so. He then asked the polling officer to obtain his signatures on the chit inside the ballot box but the polling officer replied that his signatures were not necessary. Raja Ram further stated that when the second ballot box was kept at booth No. 1 it was also neither shownto him for verification that it was empty, nor was sealed in his presence. Raja Ram was cross-examined before the learned Munsiff. In his cross-examination, he admitted that one ballot box only was kept at booth No. 1 for casting votes of Panchas and the Sarpanch therein and at the time when the ballot box was kept at the booth there were 5 panch candidates present there, besides him and that Mal Singh and Bhajan Lal had asked the polling officer to show the ballot box to them, but the ballot box was not shown. Raja Ram further admitted that Kashi Ram was not present at the time and that he had come at booth No. 1 after some votes were polled there. Kashi Ram, on the other hand, stated that he was present at booth No. 1 and that the ballot box was kept before him and he asked the polling officer to show it to him for verification that it was empty and to seal it in his presence but the polling officer turned down his request. Bhajan Lal AW 3, Khumana Ram AW 4, Gandhi Singh AW 5, Bhagirath AW 6, Sohan Lal AW 7 and Dana Ram AW 8 have said nothing about non-observance of the provisions of Sub-rule (2) of Rule 25 of the Rules by the polling officer. Hence, their evidence is not helpful to the election petitioner to prove non-compliance with the provisions of Sub-rule (2) of Rule 25. Bhajan Lal son of Sohan Lal AW 9, no doubt, stated in his deposition that the ballot boxes at booth No. 1 were neither shown to him, nor were sealed in his presence. He further stated that Kashi Ram and his election agent Raja Ram requested the polling officer to show the ballot boxes to them and to seal them in their presence but the polling officer did not pay any heed to their request. The evidence of this witness is not reliable because he stated in his cross-examination that Kashi Ram was present at booth No. 1 when the polling started while the election agent of Kashi Ram contradicted this witness on this point by stating that Kashi Ram had come to booth No. 1 after some votes had already been polled there. Similar is the evidence of AW 10 Mal Singh. He also stated in his cross-examination that Kashi Ram was present at booth No. 1 before the polling had started there and that he remained at booth No. 1 up to 11 a.m. As stated earlier, Raja Ram has not corroborated this witness on this point. In this manner, the evidenceled by the ejection petitioner on thispoint is discrepant and incredible. Apart from paucity of reliable evidence in proof of the above allegation there is another circumstance which persuades me to hold that there was no breach of the mandatory provisions of Sub-rule (2) of Rule 25 of the Rules in this case. The circumstance is that non-petitioner No. 1 did not lodge any complaint or protest in writing with the polling officer or with his superiors that the ballot boxes were not shown to him for verification of the fact that they were empty and that, thereafter, they were not locked and sealed in his presence, and were not placed within the view of the polling officer. Had it been a fact that the ballot boxes were not shown to non-petitioner No. 1 or his polling agent and, thereafter, were not locked and sealed properly and were not placed within the view of the polling officer, the non-petitioner No. 1 or his polling agent would have surely made a complaint in writing to the polling officer or to his superiors on that day or immediately thereafter, but, no such complaint in writing has been brought on the record or is alleged to have been lodged with the polling officer. Consequently, I am of the view that the learned Munsiff i.e. the Election Tribunal committed an error in holding that provisions of Sub-rule (2) of Rule 25 of the Rules were not complied with by the polling officer. The learned Munsiff further committed an error in holding that the election so far as it concerned the petitioner has been materially affected by such non-observance of the aforesaid provisions contained in Sub-rule (2) of Rule 25.

6. There is no material on the record to show how the election so far as it concerned the returned candidate, i.e. the petitioner, was materially affected by non-observance of the aforesaid Rule. The learned Munsiff also in his decision did not say how or in what manner the election was materially affected.

7. Kashi Ram, non-petitioner No. 1 further assailed the election of the petitioner, to the office of Sarpanch on the ground that the polling officer did not follow the procedure on closing of polls as laid down in Rule 36 of the Rules. Rule 36 of the Rules reads as follows:--

'36. Procedure on closing of poll. --(1) As soon as practicable after the close of the poll, the polling officer shall, in the presence of such candidates, as may be present there--

(i) examine each ballot box used at the polling station to see that it is unopened and has not been tampered with.

(ii) affix his seal thereon.

(iii) make-up into separate packets--

(a) the unused ballot papers,

(b) the spoilt ballot papers,

(c) the ballot papers returned and cancelled under Rule 33,

(d) the marked copy of the voters list, and

(e) x x x x x x (iv) affix his seal to every such packet.

(2) Subject to any direction given by the Collector, or the Returning Officer in that behalf, the ballot boxes and packets referred to in Sub-rule (1) shall be forwarded by the polling officer to the Returning Officer.'

From a bare reading of the provisions of this Rule, it is evident that the polling officer is required in the presence of such candidates as may be present to make up two separate packets, the spoilt ballot papers, the ballot papers returned and cancelled under Rule 33 and the marked copy of the voters list and to affix his seal to such packets. There is no provision in Rule 36 that the polling officer is required under the law to tell the candidates the number of unused ballot papers. All that is required by this rule is that the polling officer shall place the unused ballot papers in a separate packet and affix his seal to the packet in the presence of such candidates as may be present. Consequently, the following finding of the Tribunal that the unused ballot papers were neither shown to the candidates, nor their number was disclosed to them and so it may be presumed that there was non-compliance with the provisions of Rule 36 of the Rules cannot be upheld:--

^^ernku lekfIr ij fuokZpu vf/kdkjh}kjk mEehnokjh dks cps gq;s eri= fn[kkdj muds lkeus lhy djus ls bl ckr dh vksjls fu'p; gqvk tk ldrk gS fd mudk voS/k iz;ksx ugha fd;k tk;sxk A ;gka fuokZpu vf/kdkjh}kjk cps gq;s eri= fdrus Fks ;g Hkh ugha crk;k x;k gS vkSj bl ckr dks Lo;a mkjoknh us Hkh ekuk gS A vr% bl ckr ls ;g fu'd'kZ fudkyk tk ldrk gS fdfu;e 36 dh vogsyuk dh x;h gS A**

Apart from this, the learned counsel for non-petitioner No. 1 could not succeed in showing at the time of arguments that there had been non-compliance with the provisions of Rule 36 of the Rules by the polling officer, although the polling record was before him in the court as it was summoned by me before hearing the arguments. Consequently, I have no hesitation in holding that the learned Munsiff committed an error in arriving at a conclusion that the polling officer failed to follow the procedure laid down in Rule 36 on closing of poll.

7-A. The learned Munsiff further held that there bas been non-compliance with the provisions of Clause (c) of Sub-rule (1) of Rule 41 of the Rules, which reads as follows:--

'41. Result of election.-- (1) When the counting of votes has been completed, the Returning Officer shall --

(a) and (b) ... ... ... ... ... ... ...

(c) prepare and certify a return in Form IV setting forth therein --

(i) the names and addresses of the candidates who have been declared under Sub-rule (2) of Rule 23 to have been elected unopposed,

(ii) the names and addresses of the candidates for whom valid votes have been cast,

(iii) the number of valid votes cast for each candidate,

(iv) the number of votes rejected as invalid, and

(v) the result of the lot, if any, drawn under Rule 40, and

(d) ........................'

Clause (c) of Sub-rule (1) of Rule 41 of the Rules undoubtedly, requires the Returning Officer to prepare and certify a return in Form IV setting forth therein the particulars mentioned in Sub-clauses (i), (ii), (iii), (iv) and (v) of Clause (c) of Sub-rule (1) of Rule 41 of the Rules. In the instant case, the Returning Officer has prepared and certified a return in Form IV but therein he failed to mention the names and addresses of the candidates for whom valid votes have been cast and the number of valid votes cast for each candidate and the number of votes rejected as invalid. He merely mentioned the name of the successful candidate Shri Ram Murti and declared him to be elected to the office of the Sarpanch. He ought to have mentioned the names and addresses of the candidates who fought the election of the Sarpanch and for whom valid votes have been cast. He should have also mentioned the number of valid votes cast for each such candidate and the number of votes re-jected as invalid. Consequently, the learned Munsiff rightly observed that Return in Form IV was not correctly prepared and certified by the Returning Officer. But the matter does not end here, because it was obligatory on the part of the election petitioner, i.e. non-petitioner No. 1 to prove that the result of the election in so far as it concerned the returned candidate, i.e. the petitioner was materially affected by non-compliance with the provisions of Clause (c) of Sub-rule (1) of Rule 41 of the Rules. Non-petitioner No. 1 has miserably failed to show that the result of the election has been materially affected by failure of the Returning Officer to prepare and certify a return in Form IV containing particulars given in Sub-clauses (ii), (iii) and (iv) of Clause (c) of Sub-rule (1) of Rule 41 of the Rules. The petitioner in his statement before the learned Munsiff merely stated that after the counting was over, the Returning 'Officer did not disclose to him as to how many votes were secured by him and how many were secured by the successful candidate, i.e., Ram Murti petitioner. In his cross-examination he further stated that he came to know on the next day how many votes were secured by him and how many were secured by Ram Murti. The evidence of the petitioner on this point does not appear to be true, because the counting of the votes had taken place in his presence and soon thereafter the result was declared. The petitioner in his examination-in-chief admitted that the total votes polled were 1720, out of which he secured 809 valid votes while Ram Murti petitioner got 868 votes. If the non-petitioner No. 1 was not informed by the Returning Officer as to how many votes he had secured and how many votes were got by the successful candidate, he would have surely lodged a protest in writing with the Returning Officer or would have made a complaint against the Returning Officer to the Collector.

8. Mr. I. J. Lodha, learned counsel for non-petitioner No. 1, vehemently contended before me that Rules 25, 36 and 41 of the Rules are of a mandatory nature and vital to the conduct of the free and fair election, and so, if there was breach of these rules, the election held in this case was not a valid election. It was further urged by him that when the election was not conducted in accordance with the existing ElectionRules, there is a reasonable ground for presuming that non-observance of mandatory rules has affected the result of the election so far as it concerned the successful candidate, i. e., the petitioner. Tn support of his above contention lie relied upon Madhavrao v. Collector, District Kolhapur, AIR 1965 Bom 217 and Hardeva Ram v. Civil Judge, Jhunjhunu, 1970 Raj LW 337.

9. I have carefully gone throughthese authorities. In the case before their Lordships of the Bombay High Court, the petitioner and respondent No. 5 secured an equal number of votes and respondent No. 5 was declared successful only because of a lot drawn in his favour. In these circumstances, their Lordships held that breaches of Rules 11 (1), 37, 38 & 43 (1) of the Maharashtra Zilla Parishad Election Rules, 1962, gave room for a reasonable doubt that the result of the election might have been adversely affected. In the instant case, the petitioner secured 868 valid votes and non-petitioner No. 1 secured 809 votes and the petitioner was declared elected by a margin of 59 votes. In the face of this position, the contention of Mr. I.J. Lodha that the result of the election was materially affected so far as it concerned the successful candidate, i.e., the petitioner cannot be accepted in the absence of any reliable evidence that non-compliance with Rules 25, 36 and 41 of the Rules has in fact materially affected the result of the election. The other authority cited by Mr. I. J. Lodha is not applicable to the facts of the present case, because in that case it was held by Hon'ble Jagat Narayan J. of this Court (as he then was) that Rule 38 (3) is mandatory and counting and scrutiny of votes must be done by the Returning Officer. In the instant case, no such illegality or defect is pointed out by the learned counsel for non-petitioner No. 1 in the conduct of the election. Consequently, I am of the view that the failure of the Returning Officer to set forth in Return No. IV the names and the addresses of the candidates for whom valid votes have been cast and the number of valid votes rejected as invalid is not sufficient to set aside the election of the successful candidate in the absence of any reliable evidence from the side of non-petitioner No. 1 that such a failure has materially affected the result of the election so far as it concerned the successful candidate, i.e. the petitioner.

10. The learned Munsiff further held in his decision that non-petitioner No. 1 has succeeded in proving that the petitioner has obtained assistance from Madan Lal Patwari and Bhagwana Ram for furtherance of the prospects of his election. The learned counsel for the petitioner had challenged the above finding given by the learned Munsiff on the ground that it is based on no evidence and is, therefore, erroneous on the face of the record and is liable to be set aside on a writ of certiorari. The above contention advanced by the learned counsel for the petitioner in the course of arguments is not without force. Upon careful review of the entire evidence led by the parties before the learned Munsiff, I have no difficulty in holding that there is no proof from the side of non-petitioner No. 1 that Madan Lal Patwari and Bhagwana Ram, Gram Sewak, were asked to canvass for him or render him assistance in the matter of his election. From the mere fact that the petitioner admitted the presence of Madan Lal Patwari, and Bhagwana Ram, Gram Sewak, at polling booths at the time of polling of votes, it cannot be safely presumed that those two Government employees spoke to the voters in support of the petitioner with the knowledge or consent or connivance of the petitioner. Non-petitioner No. 1 ought to have led satisfactory evidence to prove that the assistance which the Patwari and the Gram Sewak might have rendered was not voluntary but it was solicited or sought by the petitioner or that they rendered the petitioner assistance in the matter of his election with his consent or connivance. In the absence of any such proof, the learned Munsiff was not justified in arriving at a conclusion that the Patwari and the Gram Sewak canvassed for the petitioner or rendered him assistance in the matter of his election with the latter's consent, connivance or knowledge. Reliance in support of my above view may be placed on the following authorities of the Supreme Court:--

Umed v. Rai Singh, AIR 1975 SC 43 (Para 25) and Smt. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299 (Para 428).

11. Lastly, the learned Munsiff while deciding issue No. 8 held that the Returning Officer wrongly refused to recount the votes at the request of non-petitioner No. 1 specially when he didnot set forth in the return in Form IV the names and addresses of the candidates for whom valid votes have been cast and the number of valid votes cast for each candidate and the number of votes rejected as invalid. The learned counsel for the petitioner has challenged the finding of the learned Munsiff on issue No. 8 also on the ground that the Returning Officer recounted the votes at the request of Kashi Ram and declared the result of the election after the parties were satisfied as to the counting of votes. It is no doubt true that Kashi Ram, non-petitioner No. 1, stated in his deposition that he requested the Returning Officer for ordering a recount of votes, but the latter refused to do so and did not even tell the former how many votes were secured by him and how many ballot papers were rejected. Ram Murti petitioner, on the other hand, controverted the above statement of non-petitioner No. 1 by stating in his deposition before the learned Munsiff that the Returning Officer granted the request of recount and declared the result of the election after recounting of votes. In my opinion, the statement of Kashi Ram, non-petitioner No. 1, on this point does not appear to be true because if his request for a recount was turned down by the Returning Officer, he should have filed an application in writing before him for a recount of all or any of the ballot papers already counted. He failed to do so, for reasons best known to him. Apart from this, the learned Munsiff decided issues Nos. 2, 3, 4, 5 and 7 against the non-petitioner No. 1. In view of his decision on the aforesaid issues, it cannot be safely held that the non-petitioner No. 1, succeeded in showing that it was a fit case for ordering a recount, because the grounds covered by issues Nos. 2, 3, 4, and 5 on which a demand for recount was made before the learned Munsiff could not be substantiated by non-petitioner No. 1 by any reliable and cogent evidence.

12. Consequently, I have no hesitation in holding that the decision given by the Election Tribunal, i.e., the Munsiff, Padampur, suffers from errors apparent on the record and is liable to be set aside on a writ of certiorari. Accordingly, I accept this writ petition filed by Ram Murti and quash the decision of the Election Tribunal, i.e., Munsiff, Padampur, dated October 30, 1930and declare the petitioner to be elected as Sarpanch of the Gram Panchayat 86 L.N. P. In the circumstances of the case, I leave the parties to bear their own costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //