SHIV KISHAN Vs. RADHA KISHAN
LAWS(RAJ)-1967-3-3
HIGH COURT OF RAJASTHAN
Decided on March 16,1967

SHIV KISHAN Appellant
VERSUS
RADHA KISHAN Respondents

JUDGEMENT

- (1.) THIS is a petition under Art, 226 of the Constitution by Shiv Kishan whose election to the office of Sarpanch of Malar Panchayat was set aside by Munsif, Phalodi, acting as a Tribunal under R. 71 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules 1960,, on an election petition filed by Radha Kishan respondent No. 1. The petition has been opposed on behalf of Radha Kishan.
(2.) THE election to the office of Sarpanch of Malar Panchayat was contested by Shiv Kishan and Radha Kishan. Shiv Kishan was declared as duly elected by the Returning Officer. According to the counting made by the latter Shiv Kishan polled 571 valid votes,, Radha Kishan polled 563 of them and 31 votes were rejected as invalid. On 25-1-65 Radha Kishan filed the present election petition challenging the election of Shiv Kishan inter alia on the ground that a number of invalid ballot papers were counted as valid votes in favour of Shiv Kishan. It was stated that these ballot papers were invalid because they bore seal marks against another candidate besides Shiv Kishan. Further it was stated that it was not possible to give the exact number of such invalid ballot papers, but they were approximately 13 or more. On this ground a prayer for recount was made in the petition. In his reply Shiv Kishan asserted that the allegations made about the invalidity of ballot papers counted in his favour were vague and no recount could be made on such vague allegations. Further it was denied that any mistake had been made in counting the ballot papers by the Returning Officer. Radha Kishan had not only prayed that the election of Shiv Kishan should be set aside, but he also prayed that he may be declared to be duly elected as according to him he received a majority of valid votes. THE following are the relevant issues framed by the Tribunal on the questions in controversy in this writ petition: Issue No. 7 - Whether invalid votes have been counted in favour of the non-petitioner? If so, what is the effect? Issue No. 9 - Whether re-counting of the votes cast cannot be made by the court on the grounds mentioned in para 11 of the petition. Issue No. 10 - Whether the petitioner is entitled to the declaration that he was duly elected as Sarpanch. The Tribunal decided issue No. 9 in favour of the respondent. This finding is attacked on behalf of the petitioner. I am of the opinion that no interference can be made with this finding as the Tribunal was fully aware of the decision of their Lordships of the Supreme Court in Ram Sewak vs. H. K. Kidwai (1) and duly applied its mind to the relevant considerations. As was pointed out in Amar Singh vs. The Munsif-Magistrate, Jodhpur (S. B. Civil Writ Petition No. 413/1956 decided on 3-10-66) the conditions prevailing in a Panchayat election are different from those prevailing in a parliamentary or assembly election. In the latter the candidates are generally literate and are assisted by a number of agents most of whom are lawyers. They are in the position of giving much better particulars than a candidate at a Panchayat election. At the counting of votes in a Panchayat election only the candidate is allowed to be present vide R. 38 (3 ). Candidates for the office of Sarpanch possess the qualification of being barely literate in Hindi. They are not in a position to note down the serial number of any ballot paper which has been wrongly accepted or wrongly rejected. If the Tribunal is satisfied on the basis of the material before it that a prima facie case for re-count is made out, after applying its mind to the relevant considerations then this Court cannot interfere in the exercise of its writ jurisdiction with the decision of the Tribunal to recount the votes. So far as issue No. 7 is concerned the Tribunal was of the opinion that only the votes counted as valid votes for Shiv Kishan could be recounted for the purpose of setting aside the election of Shiv Kishan. It refused to recount the votes counted for Radha Kishan or the votes rejected as invalid by the Returning Officer. In doing so it relied on the decision of their Lordships of the Supreme Court in Jabar Singh vs. Gendalal (2 ). As for issue No. 10 the Tribunal was of the opinion that before Radha Kishan could be declared to be duly elected all the votes had to be recounted including the votes counted for Radha Kishan and the votes rejected as invalid. In arriving at this finding the Tribunal again purported to rely on the decision in Jabar Singh's case (2 ). After the Tribunal had decided that all the votes are to be recounted for the purpose of granting a declaration that Radha Kishan was duly elected. Radha Kishan withdrew the prayer for declaring him to be duly elected. As a result of the withdrawal of this prayer only the votes counted for Shiv Kishan by the Returning Officer were recounted. The Tribunal rejected 35 of them as invalid and set aside the election of Shiv Kishan. The contention on behalf of the the petitioner is that the decision of the Tribunal on issue No. 7 is erroneous and that Radha Kishan should not have been allowed to withdraw his prayer for declaring him to be duly elected. In Jabar Singh's case (2) their Lordships interpreted secs. 97, 100 and 101 of the Representation of the People Act, 1951 in a case in which allegations about improper reception or improper rejection of votes had been made. The relevant provisions of these sections run as follows: - "97. Recrimination when seat claimed, - (1) When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election; provided that the returned candidate or such other party as aforesaid shall not be entitled to give such evidence unless he has, within fourteen days from the date of commencement of the trial given notice to the Tribunal of his intention to do so and has also given the security and the further security referred to in secs 117 and 118 respectively. (2) Every notice referred to in sub-sec. (i) shall be accompanied by the statement and particulars required by sec. 83 in the case of an election petition and shall be signed and verified in like manner". "100. Grounds for declaring election to be void - (1) Subject to the provisions of sub-sec. (2), if the Tribunal is of opinion - (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected - (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void. the Tribunal shall declare the election of the returned candidate to be void. " "101. Grounds on which a candidate other than the returned candidate may be declared to have been elected.- If any person who has lodged a petition has in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the Tribunal is of opinion - (a) that in fact the petitioner or such other candidate received a majority of valid votes; the Tribunal shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected. " Their Lordships observed - "confining ourselves to clause (iii) of sec. 10 (1) (d), what the Tribunal has to consider is whether there has been an improper reception of votes in favour of the returned candidate. It may also enquire whether there has been a refusal or rejection of any vote in regard to any other candidate or whether there had been a reception of any vote which is void and this can only be the reception of a void vote in favour of the returned candidate. In other words, the scope of the enquiry in a case falling under sec. 100 (1) (d) (iii) is to determine whether any votes have been improperly cast in favour of the returned candidate, or any votes have been improperly refused or rejected in regard to any other candidate. These are the only two matters which would be relevant in deciding whether the election of the returned candidate has been materially affected or not. At this enquiry, the onus is on the petitioner to show that by reason of the infirmities specified in sec. 100 (1) (d) (iii) the result of the returned candidate's election has been materially affected, and that incidentally, helps to determine the scope of the enquiry. Therefore, it seems to us that in the case of a petition where the only claim made is that the election of the returned candidate is void, the scope of the enquiry is clearly limited by the requirement of sec. 100 (1) (d) itself. The enquiry is limited not because the returned candidate has not recriminated under sec. 97 (1); in fact sec. 97 (1) has no application to the case falling under sec. 100 (1) (d) (iii)s the scope of the enquiry is limited for the simple reason that what the clause requires to be considered is whether the election of the returned candidate has been materially affected and nothing else. If the result of the enquiry is in favour of the petitioner who challenges the election of the returned candidate, the Tribunal has to make a declaration to that effect, and that declaration brings to an end the proceedings in the election petition. There are, however, cases in which the election petition makes a double claim; it claims that the election of the returned candidate is void, and also asks for a declaration that the petitioner himself or some other person has been duly elected. It is in regard to such a composite case that sec. 100 as well as sec. 101 would apply, and it is in respect of the additional claim for a declaration that some other candidate has been duly elected that sec. 97 comes into play. Sec. 97 (1) thus allows the returned candidate to recriminate and raise pleas in support of his case that the other person in whose favour a declaration is claimed by the petition cannot be said to be validly elected, and these would be pleas of attack and it would be open to the returned candidate to take these pleas, because when he recriminates, he really becomes a counter-petitioner challenging the validity of the election of the alternative candidate. The result of sec. 97 (1) therefore, is that in dealing with a composite election petiiion, the Tribunal enquires into not only the case made out by the petitioner, but also the counter-claims made by the returned candidate. . . . . . . . . . . . . . . If the returned candidate does not recriminate as required by Sec. 97, then he cannot make any attack against the alternative claims made by the petition. In such a case an enquiry would be held under sec. 100 so far as the validity of the returned candidate's election is concerned, and if as a result of the said enquiry declaration is made that the election of the returned candidate is void, then the Tribunal will proceed to deal with the alternative claim, but in doing so, the returned candidate will not be allowed to lead any evidence because he is precluded from raising any pleas against the validity of the claim of the alternative candidate. -. . . . . . . . . As a result of Rule 57, the Election Tribunal will have to assume that every ballot paper which had not been rejected under Rule 56 constituted one valid vote and it is on that basis that the finding will have to be made under sec. 101 (a ). Sec. 97 (1) undoubtedly gives an opportunity to the returned candidate to dispute the validity of any of the votes cast in favour of the alternative candidate or to plead for the validity of any vote cast in his favour which has been rejected; but if by his failure to make recrimination within time as required by sec. 97 the returned candidate is precluded from raising any such plea at the hearing of the election petition, there would be nothing wrong if the Tribunal proceeds to deal with the dispute under sec. 101 (a) on the basis that the other votes counted by the returning officer were valid votes and that votes in favour of the returned candidate, if any, which were rejected, were invalid. What we have said about the presumed validity of the votes in dealing with a petition under sec. 101 (a) is equally true in dealing with the matter under sec. 100 (l) (d) (iii ). We are, therefore, satisfied that even in cases to which sec. 97 applies, the enquiry necessary while dealing with the dispute under sec. 101 (a) will not be wider if the returned candidate has failed to recriminate. " The Rajasthan Panchayat and Nyaya Panchayat Election Rules, 1963 do not contain any provision corresponding to those contained in sec. 97 of the Representation of the People Act, 1951. But R. 78 contains provisions similar to those contained in secs. 100 and 101 of the Representation of the People Act 1951. The relevant part of R. 78 runs as follows - "78. Manner of challenging an election or co-option under Rules.- The election or co-option of any person as the Panch of a Panchayat or the election of any person as the Sarpanch or Up-Sarpanch of a Panchayat or as the member or Chairman of a Nyaya Panchayat may be called in question by presenting a petition to the Munsif, or, where there is no Munsif. to the Civil Judge, within whose jurisdiction the place of Headquarters of the Panchayat or the Nyaya Panchayat, as the case may be, is situated, within thirty days from the date on which the result of such election or co-option is declared, on any one or more of the following grounds.- (d) that the result of the election or co-option as the case may be, in so far as it concerns the returned candidate was materially affected - (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which was void, or (e) that in fact the petitioner or some other candidate received a majority of the valid votes, or Even though there is no provision corresponding to that contained in section 97 of the Representation of the People Act 1951 it is open to the returned candidate to plead in his written statement that some invalid votes were counted for the alternative candidate and some valid votes cast in his favour were improperly rejected. If he gives precise particulars so as to make a prima facie case for re-counting the votes of the alternative candidate and his rejected votes the Tribunal will be bound to recount them. He cannot ask for a recount of those votes unless he takes the requisite pleas in his written statement. For the trial of an election petition under the Rajasthan Panchayat and Nyaya Panchayat Election Rules is a judical trial which has to be conducted in accordance with the procedure provided in the Code of Civil Procedure for the trial of suits so far as it can be made applicable. Rule 2 of order 8 C. P. C provides that the defendant must raise by his pleading all matters which show the suit not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality. The above rule does not contain any technical rule of law as is contain in rule 5 of order 8 which their Lordships of the Supreme Court did not apply to a case in which the returned candidate was alleged to have committed a corrupt practice. See paras 25 and 26 of the judgment in Jagjit Singh v. Kartar Singh (3 ). I would like to emphasise that vague allegations about improper acceptance or rejection of votes made in the written statement will not entitle the returned candidate to a re-count. He must make out a prima facie case for recount in the same manner in which an election petitioner is required to make out such a case. So far as the prayer in the petition for setting aside the election of Shiv Kishan under R. 78 (1) (iii) of the Rajasthan Panchayat and Nyaya Panchayat Election Rules is concerned the decision in Jabar Singh's case (2) is fully applicable as the wordings of this rule are the same as the wordings of sec. 100 (1) (d) (iii) of the Representation of the People Act. 1951. The Tribunal therefore rightly held that for setting aside the election of Shiv Kishan all that was necessary to do in the present case was to recount the ballot papers counted by the Returning Officer in favour of Shiv Kishan. Shiv Kishan did not make any allegation in bis written statement that any invalid vote was improperly received for Radha Kishan or that any of his valid votes was improperly rejected by the Returning Officer. Under rule 38 (8) of the Rajasthan Panchayat and Nayaya Panchayat Election Rules every ballot paper which is not rejected under rule 39 shall be deemed to be valid. The votes counted for Radha Kishan will thus be deemed to be valid. The Tribunal was under the erroneous impression that the Rajasthan Panchayat and Nyaya Panchayat Election Rules did not contain a provision similar to that contained in rule 57 of the Conduct of Election Rules 1961. The Tribunal could have declared Radha Kishan to be duly elected without recounting all the votes. It was under the erroneous impression that the Rajasthan Panchayat and Nyaya Panchayat Election Rules did not contain a provision similar to that contained in rule 57 of the Conduct of Election Rules and it could not be presumed that the votes which had been counted for Radha Kishan were valid votes. Radha Kishan however withdrew the prayer for a declaration that he was duly elected and he cannot now be declared as duly elected. A contention was raised on behalf of the petitioner that he did not ask for recounting the votes counted for Radha Kishan and for recounting his rejected votes in his written statement because Radha Kishan had asked for a re-counting of all the votes in his election petition. This contention has no force. A careful reading of the election petition goes to show that Radha Kishan only asked for a recount of those votes which according to him had been improperly received. He did not ask for a recount of all the votes. Further the petitioner on the other hand did not assert in his written statement that any invalid vote had been counted for Radha Kishan or that any of his valid votes had been rejected by the Returning Officer. As I have pointed out above even a bare allegation that the Returning Officer had improperly received votes for Radha Kishan and rejected his votes would not have been sufficient to entitle him to claim recount. The petitioner was therefore not entitled to get the votes counted for Radha Kishan recounted. No other point was pressed on behalf of the petitioner. In the result the writ petition is dismissed. I however leave the parties to bear their own costs of this writ petition. The interim stay order passed by this Court on 12-9-66 is discharged. Let a direction be issued to the Collector Jodhpur to hold fresh election for the office of Sarpanch of this Panchayat. . ;


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