- (1.) IN these two writ petitions validity of U. P. Kshettra Samities (Election of Pramukhs and Up-Pramukhs and Settlement of Election Disputes (Second Amendment) Rules. 1973. as pub lished In the Gazette dated 17th February, 1973 has been challenged.
(2.) BABU Singh and Babop Khan, petitioners in the two writ petitions con tested elections for the office of Pramukhs of the Kshettra Samities. during the elec tions held in March, 1973 for the constitution of Kshettra Samitties under Section 7 of the U. P. Kshettra Samities and Zila Parishad Adhiniyam. 1961 (here) Inafter referred to as the Adhinivam). Votes were recorded by the members of the Kshettra Samities in the manner laid down In Rule 24 of the U. P. Kshettra Samities (Election of Pramukhs and U.P Pramukhs and Settlement of Election Dis putes) Rules, 1973. Several members ob tained help of companions for recording their votes. Both the petitioners lost their elections and their rival candidates were declared elected, thereafter, they filed these two writ petitions challenging the validity of clause 7 of Rule 24 as am ended by the Second amendment in 1973. Section 7 of the Adhiniyam lays down that a Pramukh shall be elected by the members of the Kshettra Samiti by secret ballot and in the manner? provided by Rules which shall also Pro vide for resolution of doubts and disputes relating to the election of Pramukhs and Up-Pramukhs, Section 237 of the Adhi nivam lays down that the State Govern ment may make rules consistent with the Adhinlyani in respect of any matter tie matters for which power of making rules Ss expressly or by implication conferred by the Adhin Syam and may also make rules which are otherwise requisite to carrying out the purpose of the Adhi niyam. The Rules so framed are reauired to be published and laid before the two Houses of the State Legislature. In pur suance of the powers conferred on it by Section 7 read with Section 237 of the Adhinivam, the State Government fram ed the T. P. Kshettra Samiti (Election of Pramukhs. Up-Pramukhs and Settlemenf is Election Disputes) Rules. 1962. These Rules contain detailed provisions for the conduct of elections of Pramukh. UP-Pramukh and also for the filing of elec tion petition, its trial and disposal by the Election Tribunal. Rules 3 and 4 of the said Rules define Returning Officer and Assistant Returning Officer and prescribe their duties and functions. Chapter n of the Rules lays down detailed procedure for the conduct of the election of Pra mukh. Rr. 16 to 24 regulate polling for the election of Pramukhs. Rule 24 lavs down the manner of recording of votes. These rules were amended, from time to time the latest amendment being Uttar Pra desh Kshettra Samities (Election of Pra-mukhg and Up-Pramukhs and Settlement of Election Disputes) (Second Amend-contd. on 21 Column 1 Existing sub-rule - The Returning Officer and the Asstt. Returning Officer shall perform their functions and duties under the Gene ral Superintendence of Director of Election Local Bodiea. U. P. 24. '(7) The Presiding Officer shall. H (requested by a member, explain to him the instructions contained in the ballot papers for the recording of vote (7) If owing to the physical incapacity or illiteracy his references on the bal lot paper or to read it the Presiding Offi cer shall on being so requested by mem ber record the vote in the ballot paper according to the direction at the member. The member shall then either himself or with the assistance of the presiding Offi cer, put the ballot rawer folded UP Into ballot box. The Presiding Officer still five this done with as much secrecy as reasonable and shall keep a brief record, of each such Instance without indicating the manner In which the vote has been cast" Vide Notification pub lished in the Gazette dated 17th Febru ary. 1973. The amending Rules of 1973 amended several rules but for the pur poses of the present petitions, only the amendments made in Rules 4 and 24 are necessary to be considered. Rule 2jtf the Second Amendment of 1973 amended Rules 4 and 24 of 1962 Rules. The rele vant amendments necessary for the pur poses of the present writ petitions are reproduced below : - "2. In the Uttar Pradesh Kshettra Samities (Election of Pramukhs and UP-Pramukhs and Settlement of Election Dis putes) Rules, 1962. (hereinafter referred to as the said Rules). (i) for the sub-rule mentioned In column 1, the sub-rule as mentioned to column 2 shall be substituted. Column 2 Sub-rule as hereby substituted (4) (4) The Returning Officer and the Asst Returning Officer shall perform their functions and duties under the general superintendence, direction and control of the Nirvachan Nideshak (Sthaniya Nikaya) Uttar Pradesh. 24 (6). The Returning Officer shall fill requested by a member explain to him the instructions contained in the ballot paper for the recording of votes. (7) If an elector is unable to read the ballot paper or to record his vote thereon by reason of illiteracy, blindness r other Infirmity, the returning officer shall, on being satisfied about such ill iteracy, blindness or infirmity, permit the elector to have with him a companion of not less than 21' years of age who is able to read ballot paper and record the, vote thereon on behalf of and in accordance with the wishes of the elector and. If necessary, fold the ballot papers GO as to conceal the vote and insert it into the ballot box. Provided final no person shall be per mitted to act as the companion of more than one elector at any polling station on the same day. Provided further that before any permitted to act as the companion of an elector on any day under this rule, the person shall be required to declare that he will keep secret the vote recorded by him on behalf of the elector and that) he has not already acted as the compa nion of any other elector at any pollen station on that day. The Returning Officer shall keep record in form 7-A of all the cases under this sub-rules,"
(3.) AFTER the second amendment of Returning Officers are required to Bute 4 (4) Returning Officer and Assistant form their functions and duties under the general superintendence and direction and control of Nirvachan Nideshak (Stha-niya Nikay) U. P. He Director of Elec tions of the Local bodies is the Nirvanchan Nideshak (Sthaniva Nikav V. He Is empowered to supervise and regulate the conduct of elections and for that purpose he is invested with powers to issue direc tions to the Returning Officer and Assis tant Returning Officer and the latter are required to follow any direction "issued by the Director of Elections. Rule 24 which laid down, the manner of record-Ins of votes prior to its amendment pro vided that if due to physical incapacity or illiteracy a voter was not able to record his vote or preferences on the ballot paper at the election of Pramukhs. the Presid ing Officer was empowered to record the vote of that member according to Ms direction and request. The presiding officer was required to record vote on be half of that member with as much secrecy as possible and he was further required to keep a brief record of each such instance, without indicating the manner in which vote was recorded by him. After the amendment of clause (71 of Rule 24 by the Second Amendment of 1973 instead of the Presiding Officer re cording the vote of a member who may be physically incapacitated, the voter Is entitled to take a companion with him who may record his vote on his behalf and in accordance with his wishes. The proviso to the amended rule lavs down that no single person shall be permitted it any polling station to act as companion for more than one elector on the same day. The amended clause in of Rule 24 further provides that such companion should not be less than 21 years of age and he must be able to read ballot paper and record the vote thereon. Before any companion Is allowed the Presiding Offer is required to stiffed himself about the illiteracy, blindness or infirmity of the elector making request for the faci lity of a companion for recording of his vote. Clause (7) of Rule 24. as it stands after its amendment by the second am endment of 1973. under challenge in she present writ petitions.;