SHANKARRAO BALADAS NIKHARE Vs. SECOND ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(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June 11, 1957, between 8 -30 a.m. and 4 -30 p.m. Respondents Nos. 5 to 9 had also filed their nomination papers but had withdrawn before the date of election and they are made parties in this petition to obviate any formal objection.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.) 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.