DAMODAR PRASAD Vs. CIVIL JUDGE SAMBHAR
HIGH COURT OF RAJASTHAN
CIVIL JUDGE SAMBHAR
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JAGAT NARAYAN, J. -
(1.) THIS is a petition under article 226 of the Constitution by one Damodar Prasad against an order of the Civil Judge, Sambhar, dismissing the election petition filed by him challenging the election of Shanker Singh respondent. The petition has been contested on behalf of Shankar Singh.
(2.) THE election to the office of Sarpanch of Khudiyala Panchayat was contested by Shankar Singh and Damodar Prasad. According to the counting made by the Returning Officer Shankar Singh polled 390 valid votes, Damodar Prasad polled 333 of them and 103 votes were rejected as invalid. THE defeated candidate Damodar Prasad filed an election petition challenging the election on a number of grounds most of which were abandoned. One of the grounds which was pressed is contained in para 6 of the election petition namely that his valid votes were illegally rejected and invalid votes were counted for Shankar Singh. THE following allegations were made in this respect in the petition - (1) THE returning officer rejected valid ballot papers marked for the petitioner on the ground that they bore marks in the compartment of the other candidate also. THEse marks were caused by folding the ballot papers when the ink had not dried. (2) Several of the ballot papers marked for the petitioner were rejected on the ground that the mark was not made at the proper place. According to the petitioner the mark was made at the proper place and the intention of the voter to vote for the petitioner was clear. (3) Most of the 103 rejected ballot papers were valid votes for the petitioner. (4) THE Returning Officer counted several invalid ballot papers in favour of the returned candidate. A prayer was made before the election tribunal to allow an inspection of the ballot papers in order to furnish particulars of the ballot papers improperly rejected for the petitioner and improperly accepted for the returned candidate. This prayer was refused by the tribunal on the ground that under rule 39 (4) of the Rajasthan Panchayat and Nyaya Panchayat Election Rules 1960 the decision of the Returning Officer as to the validity or otherwise of the ballot paper is final.
The contention on behalf of the petitioner is that the tribunal had power to inspect the ballot papers. Under rule 78 (d) (iii) the election of a returned candidate can beset aside if it is shown that the result of the election was materially affected by the improper reception, refusal or rejection of any vote or the reception of any vote which was void. It is implicit from this rule that the tribunal has power to inspect the ballot papers and re-scrutinise them as well as to recount them provided the petitioner gives adequate statement of the material facts on which he relies in support of his case in this behalf in the election petition. Rule 42 (2) runs as follows - "the packets of used ballot papers, whether except under the orders of the officer or authority valid, tendered or rejected and the marked copies competent to hold inquiries in respect of an of the voters lists shall not be opened and their election or of a court of competent jurisdiction. " contents shall not be inspected or produced
It is implicit in the above rule also that in such a case the tribunal has power to inspect the ballot papers and re-scrutinise and recount them.
Rule 78 (d) (iii) of the Rajasthan Panchayat and Nyaya Panchayat Election Rules 1960 is similar to section 100 (1) (d) (iii) of the Representation of the People Act and rule 42 (2) of the Rajasthan Panchayat and Nyaya Panchayat Election Rules 1960 is similar to rule 93 of the Conduct of Election Rules 1961 relating to parliamentary and assembly elections. It was held by their Lordships of the Supreme Court in Ram Sewak vs. H. K. Kidwai (l) that in a proper case where the interests of justice demand it the tribunal may call upon the Returning Officer to produce the ballot papers and may permit inspection by the parties before it of the ballot papers: that power is clearly implicit in Ss. 100 (1) (b) (iii), 101, 102 and rule 93 of the Conduct of Election Rules, 1951.
In the same case however it was laid down that the Tribunal would be justified in granting an order for inspection only if two conditions are fulfilled; namely (1) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case; and (2) the tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary. It was pointed that an order for. inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas.
In the present case the allegations made in para 6 of the election petition which have been referred to above with regard to improper rejection or improper reception of invalid votes are vague and no inspection of the ballot papers can be granted on the basis of such vague allegations.
The only other ground which was taken in the election petition and which was not abandoned is that 17 bogus votes were cast for the returned candidate. As the returned candidate won by a margin of 57 votes even if it is proved that 17 bogus votes were cast for him. the result of the election will not be materially affected.
I therefore hold that the election petition fais and dismiss the writ petition. In the circumstances of the case, I leave the parties to bear their own costs of it. .
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