KAN SINGH, J. -
(1.) JABARSINGH petitioner, who was elected as a Sarpanch of the Gram Panchyat Udaliyawas at the general Panchayat elections held in January, 1965 and whose election was set aside by the Munsif of Bilara on two separate election petitions filed by Prabhu Dan and Harak Chand, respondents Nos. 1 and 2 respectively, questions the validity of the judgment of the learned Munsif by this writ petition. The relevant facts are briefly these.
(2.) PETITIONER Jabar Singh, non-petitioner No. 1, Prabhudan, non-petitioner No. 2 Harakchand and one Madanlal filed nomination papers for the office of Sarpanch for Gram Panchayat Udaliyawas. Harakchand, non petitioner No. 2 is said to have filed his nomination paper at 9. 40 a. m. on 4. 1. 65. The petitioner filed his nomination paper for the office of Sarpanch at 9. 45 a. m. on that very day. Madanlal filed his nomination papers for Sarpanch at 9. 30 a. m. Harakchand and Madanlal also filed their nomination papers for the office of Panchas for separate Wards. The Returning Officer scrutinised the nomination papers the same day. According to the petitioner, both Shri Harak Chand and Shri Madan Lal expressed before the Returning officer, in unambiguous terms, at time of scrutiny of their nomination papers that they did not want to contest the election for the office of Sarpanch, but only wanted to stand for the election of the office of Panchas from their respective wards and they requested the Returning Officer to reject their nomination papers for the office of Sarpanch. Thus it is the petitioner's case that it was on the representation made by the concerning candidates themselves that the nomination papers of Harakchand and Madanlal were rejected by the Returning Officer. The petitioner avers that it was in token of the concerning candidates making the request themselves that the Returning Officer had asked them to sign the endorsement made by him which they did. According to the petitioner, there remained in consequence only two contestants for the office of the Sarpanch namely, the petitioner and non-petitioner No. 1 Prabhu Dan. As a result of the poll the petitioner was found to have obtained 377 votes, whereas non-petitioner Prabhu Dan had obtained only 364 votes. As a result of the counting of votes the Returning Officer declared the petitioner to have been duly elected as a Sarpanch of the Gram Panchayat.
To challenge the petitioner's election as a Sarpanch, the defeated candidate, non-petitioner No. 1 Prabhu Dan, also non-petitioner No. 2 Harakchand filed separate election petitions before the Munsif Bilara. It was inter alia urged in the election petitions that the Returning Officer had wrongly rejected the nomination papers of non-petitioner No. 2 Harak Chand and that of Madanlal and consequently the election was vitiated.
The election petitions were contested by petitioner Jabar Singh.
As common questions of law and fact arose, the learned Munsif tried the two petitions together and disposed of them by a common judgment The dispute before the election tribunal (Munsif) centered round the question whether nomination papers of Harakchand and Madanlal for the office of the Sarpanch were wrongly rejected. For this the learned Munsif considered only the nomination papers and the endorsements made by the Returning Officer thereon for rejecting them. The parties did not choose to lead evidence in the case, as they thought that the petitions raised only a legal issue. On consideration of the endorsement made by the Returning Officer on the nomination papers the learned Munsif came to the conclusion that the grounds mentioned by the Returning Officer were not permissible grounds for rejection of nominations as contained in rule 18 of the Rajasthan Panchayat and Nyaya Panchayat Rules, 1960, hereinafter to be referred as the "rules". Accordingly, the learned Munsif held that the nomination papers of Harakchand and Madanlal were wrongly rejected by the Returning Officer and in the result he set aside the election of the petitioner as Sarpanch.
In assailing the judgment of the learned Munsif it is contended by the petitioner that the learned Munsif should not have recorded any finding in the manner he did without making a proper enquiry into the facts, as it was asserted before him by the petitioner that it were the concerning candidates themselve who had expressed a wish before the Returning Officer that they did not like to seek the office of the Sarpanch in view of their standing as candidates as Panchas. In this connection it is pointed out that even if the rejection of the nomination papers were not expressly covered by rule 18 (3) of the Rules, yet as the Rajasthan Panchayat Act, 1953, hereinafter to be referred to as the "act" did not contemplate the simultaneous holding of offices of a Panch and a Sarpanch by the same person it should be taken that rule 18 of the Rules implies that a person is not qualified to stand simultaneously as a candidate for both the offices, more so, when there was no provision for quitting one office and continuing in the other after the election unlike the provisions of the Representation of the People Act. It was also urged that it is open to a candidate to withdraw his consent for the election and for this analogy was drawn from the provisions of sub-rule 3 (c) of rule 18 of the Rules. Attention was also invited to the provisions of sub-rule (b) of rule 18 of the Rules.
The writ petition has been opposed on behalf of non-petitioner No. 1 Prabhu Dan.
I have heard Shri L. R. Mehta for the petitioner and Shri Marudhar Mridul for the non-petitioner.
It will be seen from the nature of the contentions set out above that the question falls to be determined on a consideration of the relevant provisions of the Act and the Rules and I find it convenient to read the relevant provisions.
Section 2 (3) of the Act defines the term "panch' to mean a member of a Panchayat other than a. Sarpanch. Sub-section (9-A) of this section defines a 'sarpanch' to mean the Sarpanch of a Panchayat elected under sub-sec. (1) of sec. 13. Section 3 of the Act is about the establishment of Panchayats and sec. 4 provides for its composition. It lays downs that a Panchayat shall consist of. (a) a Sarpanch; (b) such number of Panchas, not being less than five or more than twenty as the State Government may determine, elected from amongst the qualified voters of the Panchayat; (c) Panchas co-opted under sec. 9, and (d) presidents of all the service co-operative societies in the Panchayat circle certified in the prescribed; manner, as holding office as such who shall, so long as they continue to be such presidents, be associate members of the Panchayat. This sec. shows that a Panchayat shall consist of a Sarpanch as one of its components and then three categories of Panchas viz, the Panchas elected in accordance with the provisions of the Act and the Rules, Panchas co-opted under section 9 and the associate members who become ex-offcio members of the Panchayat on satisfaction of certain conditions.
The Rules have been made by the State Government under sec. 89 of the Act. They lay down in detail the procedure for election and co-option. It is not necessary to refer to the provisions which are not material for the present purposes. The fascicule of rules beginning from rule 14 lay down how elections are to be held. For the Panchayat elections the Returning Officer, as everywhere, has to play an important role. Rule 15 prescribes the duties and powers of the Returning Officer. Rule 16 provides for the presentation of the nomination papers. It is as follows - Presentation of nomination papers - - (1) On or before the day appointed under sub-clause (a) of clause (ii) of sub-rule 14 for the presentation papers, any person qualified under sec. 11 for election as a Panch and desiring to seek such election, hereafter in this chapter referred to as a candidate, shall deliver in person to the Returning Officer his nomination paper in Form 1 duly filled in and signed by the candidate. (2) Any nomination paper not delivered as provided in sub-rule (1) shall be rejected. Rule 17 lays down the procedure to be followed upon delivery of nomination papers and it is reproduced hereunder: - "procedure upon- delivery of Nomination papers - Upon delivery of a nomination paper under rule 16, the Returning Officer shall inform the person so delivering the same of the day, hour and place appointed for the scrutiny thereof and shall endorse thereon in his handwriting - (i) The serial number of the ward from which the candidate proposes to seek election, (ii) the serial number of the nomination paper for such ward, (iii) the name of the person, delivering the nomination paper together with the name of the person, if any, identifying person, and (iv) the date on which, and the hour at which, the nomination paper was delivered to him. Rule 18 provides how the nomination papers would be scrutinised and it is as follows - "scrutiny of nomination papers - (1) On the day and by the hour appointed under subclause (b) of clause (ii) of sub-rule (1) of rule 14 of the nomination papers, the Returning Officer shall examine the same. (2) At the time of such examination the candidates themselves and no other person may attend and the Returning Officer shall afford each of them - (i) all reasonable facilities for examining the nomination papers delivered by others, and (ii) a reasonable opportunity of making objections to any of them. (3) The Returning Officer shall decide all such objections and may, either on the basis of such objection or on his own motion, reject any nomination paper on any of the following ground, namely : - (a) that the candidate is not qualified or is disqualified for election; (b) that he is not identical with the person whose number or name on the voters' list is stated in the nomination paper to be the number or name of the candidate; (c) that his signature is not genuine or has been obtained by fraud, coercion or undue influence; (d) there has been a failure in complying with the provisions of rule 16. (4) The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same and, in case of rejection, a brief statement of his reasons for such rejection. (5) The scrutiny shall be completed on the same day and no adjournment of the proceeding shall be allowed. " Rule 19 lays down the procedure for withdrawal of candidature and it runs as follows: "withdrawal from candidature - (1) Any candidate may withdraw his candidature by notice in writing in duplicate signed by him and delivered in person to the Returning Officer on the date and and by the hour appointed under subclause (c) of clause (ii) of sub-rule (1) of rule 14. (2) No notice of withdrawal shall be entertained after the day and the hour referred to in sub-rule (1 ). (3) A candidate who has withdrawn his candidature shall not be allowed to cancel the notice of withdrawal. (4) The Returning Officer shall, on receiving a notice of withdrawal under sub-rule (1), cause as soon as may be, one copy thereof to be exhibited at some conspicuous place in the office of the Panchayat or in any conspicuous place at the headquarters of the Panchayat office is established. I need not notice other provisions of the Rules.
Now, for seeing whether the Returning Officer was within his powers in rejecting the nomination papers of non-petitioner No. 2 Harakchand and Madan Lal, I may re-produce the endorsements made by the Returning Officer on the various nomination papers. The petitioner has brought on record 4 nomination papers Annexures A, A-l, B and B-1. Annexures A contains the following endorsement - "rejected (as he stood for the post of Panch Ward No. 7 also ). Accepted for Ward No. 7 as he requested. sd/- A. M. Mehta, Returning Officer. " (I have translated the word 'rejected' in the above endorsement) In Annexure A-1, there is the following endorsement - "rejected (applied for Panch and Sarpanch both) as per his will his form for Ward No. 5 has been accepted. sd/ - Returning Officer. " (I have translated the word 'rejected' in the above endorsement ). The relevant endorsement on Annexure B was as follows - "rejected (he applied for Panch and Sarpanch ). His nomination for Ward No. 7 has been accepted for his request. sd/ Returning Officer. " (I have translated the word 'rejected' in the above endorsement ). Annexure B-1 has only the the following remark - "accepted. " sd/ - Returning Officer. " (I have translated the word "accepted" ).
These endorsements of the Returning Officer do show that in rejecting the three nomination papers he purports to have done so on the request of the candidates themselves. The crux of the matter, therefore, is whether this was a permissible course contemplated by the provisions of the rules. Rule 18 (3) lays down four grounds for rejection of a nomination paper. It is common ground between the parties that the endorsements in question are not expressly covered by any of the grounds specified in the rule. Learned counsel for the petitioner has, therefore, tried to show that in view of certain considerations it should be implied in the rule that where a candidate himself has expressed a wish for not pressing his nomination papers and if on his request the Returning Officer makes an endorsement and the candidate too puts his signature thereon then that should be taken to be withdrawal of the candidate's consent for the election and in such a situation the Returning Officer would be within the scope of the rule in rejecting the nomination paper.
(3.) ON the other hand, learned counsel for the non-petitioner argues, with equal vehemence, that once a nomination paper has been properly delivered and received by a Returning Officer, then such a nomination paper could be withdrawn only in conformity with the provisions of rule 19 of the Rules and in no other manner. In elaboration learned counsel urges that this rule has designedly been framed to guard against possible mal-practices and to ensure fair play at the hands of the Returning Officers who are not expected to get themselves mixed up with the affairs of the candidates appearing before them. Learned counsel maintains that if rule 19 were not to be applied with full vigour then it would open the flood gates for various kinds of mischievous practices at the time of elections. As regards the holding of two offices by a person namely, that of a Panch and Sarpanch at the same time, the learned counsel submits that even though there may not be a provision in the Act or the Rules corresponding to sec. 190 of the Representation of the People Act, 1951, there is no legal bar to a person seeking election for the two offices at the sane time. Learned counsel points out that even after election a person can give up one of the two offices, in the absence of any provision in the Act or the Rules one way or the other. The disqualification, if at all, according to the learned counsel, could be there only after a person is elected to the two offices and thereafter if he wants to hold both the offices simultaneously, but there can be no disqualification, according to him, at the stage of filing of the nomination papers Learned counsel, therefore, urges that the election tribunal (Munsif) was right in holding that the nomination papers of non-petitioner No,2 Harakchand and Madanlal had been wrongly rejected.
Rule 18 (3) lays down the conditions under which the Returning Officer can reject a nomination paper. Such conditions being prescribed for rejecting a nomination paper they have to be strictly complied with and, in my viaw, it is not open to a Returning Officer to travel beyoned them. Learned counsel for the petitioner submits that a condition should be implied for rejection in a case where the office of a Sarpanch or a Panch cannot simultaneously be held by one person. I see two obvious difficulties in accepting this submission. In the first place, there is no warrant for the proposition that a person who is a candidate for Panchship cannot stand for the office of a Sarpanch. Even I do not find any legal bar to a person who has once been elected as a Panch and is holding that office to offer himself as a candidate for Sarpanchship, if at any time such an occasion arises. Therefore, it is difficult to accept that a person who has filed his nomination paper for Panchsip will be ineligible to stand as a candidate for the office of the Sarpanch. In the second place, as sub-rule 18 of the Rules is couched in unambiguous language it will not be right to read something in it which is not there. To bold that a person who has filed his nomination paper for Panchship cannot file his nomination paper for the office of the Sarpanch and therefore it should be implied that the nomination paper can be rejected by the Returning Officer will, in my view, amount to adding something to the rule. It is true there is no provision corresponding to sec. 190 of the Representation of the People Act for resigning one of the two seats to wich a person may be elected. But even so, in my view that would not create any insuperable difficulty in the functioning of the Panchayat. I have already referred to the definitions of the terms Sar Panch and Panch. It is noteworthy that the term Panch means a member of a Panchayat other than a Sar Panch and the term Sar Panch means the Sar Panch of a Panchayat elected under sub-sec. (1) of sec. 13. The definitions are, to my mind, indicative of the position that a person who is a Sarpanch cannot simultaneously be a Panch of that very Panchayat and therefore if he is elected to the two offices he may have to give up one of these two offices. This might however be the position on the completion of the electoral process but I do not see any legal hurdle in the path of a candidate at the very threshold of the electoral process namely, at the time of the filing of the nomination papers for the two offices. I, therefore, do not find any force in the contention of the learned counsel that the Returning Officer should be able to reject the nomination of a person for Sarpanchship on the ground that be has already filed a nomination paper for Panchship from a ward.
I may now turn to the endorsements made by the Returning Officer for rejecting the nomination papers. Learned counsel for the petitioner wants to justify these on the ground that the candidates concerned had expressed their wish before the Returning Officer to withdraw their consent for election and this they could do at any time and on the basis thereof the Returning Officer could reject the nomination papers. Learned counsel wanted to draw analogy from sub-rule (b) and sub-rule (c) of sub-rule (3) of rule 18 of the Rules where under the Returning Officer makes certain enquiry. I fear these sub rules do not bear any analogy with the present case. , Sub-rule (b) is about the identity of the person with the number or name on the voters' list. Sub-rule (c) is about the genuineness of the signature of a candidate on the nomination paper. There, of course, the Returning Officer has to satisfy himself that the person who purports to have filed the nomination paper is really that very person or that the name on the voters' list tallies with that of the person filing the nomination paper. This is not like the action on the part of a candidate in contacting the Returning Officer and trying to withdraw his consent for election. For withdrawal of such consent there is the specific rule 19 which lays down a procedure of withdrawal. According to that rule it is open to a candidate to withdraw his candidature by notice in writing in duplicate signed by him and delivered in person to the Returning Officer on the date and by the hour appointed for the purpose. On receipt of such a notice of withdrawal the Returning Officer does not proceed to reject the nomination paper as under Rule 18 but he has to exhibit one copy thereof at some conspicuous place in the office of the Panchayat or in any conspicuous place at the headquarters of the Panchayat where no Panchayat office is established. Sub-rule (1) of rule 19 implies that it is the person who has once filed the nomination paper who delivers a notice in writing to the Returning Officer and it is the Returning Officer who receives such a notice of withdrawal and then takes further action as contemplated by sub-rule (4) of rule (19 ). In other words, the Returning Officer has not to play any part in the preparation or giving of any such notice of withdrawal which is the act of the candidate himself. In the present case it is the Returning Officer who had made an endorsement on the nomination paper itself and then on the basis thereof he has rejected the nomination papers. Such a course is not contemplated by rule 19 and it cannot be countenanced. The Returning Officer is not expected to do any thing with the preparation of the notice of withdrawal or its presentation. Rule 19, in my view, has to be complied with in terms; otherwise it is likely to give rise to various kinds of malpractices. That being so, the Election Tribunal was right in holding that the nomination papers of non-petitioner No. 2 Harakchand and Madanlal have been wrongly rejected and this had vitiated the election.
There is thus no force in this writ petition which I accordingly dismiss with costs. The interim stay granted on 8th July, 1966 is hereby vacated. .