SYED NISSAR AHMAD Vs. ASSISTANT COMMISSIONER, ANANTNAG

JUDGEMENT

(1.) IN the Panchayat elections held in the State in the year 1969, the petitioner herein, Syed Nissar Ahmad -hereinafter called the First party -was elected as Panch to the. Panchayat Committee, Asnoor, Teh. Kulgam. The second respondent herein, Abdul Khaliq hereinafter called the Second party -challenged his election inter alia on the allegation that he had secured 81 votes as against 58 obtained by the first party and that a converse position was reflected in the forms of return prepared by the Presiding Officer and the Returning Officer which resulted in the first party being declared successful at the election. The plea found favour with the Assistant Commissioner, Anantnag, respondent No. 1 herein, who heard the election petition though only exparte against the first party. By his order dated April 20, 1971 the Assistant Commissioner set aside the election of the first party and declared the second party to be duly elected Panch in his place. The first party has filed this writ petition challenging the order.

(2.) THE case of the first party is that the impugned order falls outside the scope of section 22 of the Jammu and Kashmir Village Panchayat Act, 1958 which governs the election petitions and is therefore void, illegal and without jurisdiction. The case of the first respondent in reply is that the order is justifiable under the said section and the rules framed under the Act. Under section 22 (1) (b) (ii) the election of a Panch may be called in question on the ground that the result of the election was materially affected by gross failure to comply with the provisions of the Act or the Rules framed thereunder. A similar provision exists in the Representation of People Act 1951. By section 100 (1) (d) (iv) the said Act provides that the election of returned candidate may be questioned on the ground that the result of election was materially affected by any non -compliance with the provisions of the Constitution or of the Act or of any rules or orders made under the Act. Dealing with this provision it was held in Naunihal Singh Vs. Kishori Lal (AIR 1961 M. P. 84) that the word Non -Compliance denotes an omission to do what is directed to be done and not doing an act which is prohibited. In that view it was held that the carrying of identity cards of the Congress candidates by some of the voters to the polling station which was an offence punishable under section 130 of the Act did not amount to non -compliance with the provisions of the Act. This view was later on shared by the Punjab High Court in case Mahdav Singh Vs. Ram Saran (AIR 1966, Punjab 66). I am in respectful agreement with this view and hold that the expression "failure to comply" in section 22 of the Jammu and Kashmir Village Panchayat Act conveys the same sense and meaning as the word Non -compliance in section 100 (1) (d) (iv) of the Representation of People Act of 1951. So viewed the expression failure to comply in section 22 (1) (b) (ii) denotes an omission to do what is directed by the Act or the Rules framed thereunder and does not denote doing of any act which is prohibited by the Act or the rules framed thereunder or by any other law for the time being in force.

(3.) THE question then is: whether wrong entries made in the forms of return about the number of votes secured by each contesting candidate at a Panchayat election constitutes non -compliance with the Jammu and Kashmir Village Panchayat Act or the rules framed thereunder so as to bring the act within the purview of section 22 (1) (b) (ii) of the Act. It is suggested that the act of making wrong entries in the forms of return constitutes non -compliance of Rule 30 of the Jammu and Kashmir Village Panchayat Rules, 1959. That Rule provides as under: - "Procedure for voting. - (a) The Presiding Officer shall call out the first name from the list of contesting candidates as arranged in alphabetical order, and shall require the voters present who may be desirous of giving their vote to the candidate, to stand up. (b) The Presiding Officer shall count such voters who have stood up in favour of the candidate and record the number in the polling Return in Form (4). (c) The Presiding Officer shall thereafter require such voters to leave the polling place and call for voters to the next candidate after the voters for the previous candidate have left." What this Rule directs is that the votes shall be counted in the manner indicated therein and the number of votes secured by each contesting candidate shall be recorded in the polling return in form (4). There is no dispute that the counting was done by the Presiding Officer and the number recorded in polling return in form (4). The grievance of the second party in the election petition was that the Presiding Officer as also the Returning Officer dishonestly made wrong entries and indicated the majority votes secured by him to have been obtained by the first party and vice versa. Assuming that it was so, the act of the Presiding Officer and the Returning Officer constituted unlawful act punishable under section 167 of the Ranbir Penal Code read with section 21 (paragraph thirteenth) thereof. On the principles stated above their act of making dishonest entries in polling returns signified doing of an act prohibited under the Ranbir Penal Code and did not amount to non -compliance of Rule 30 of the Jammu and Kashmir Village Panchayat Rules. On this ground, therefore, the election of the first party could not be assailed muchless could it be investigated into by the Assistant Commissioner trying the election petition. Based, as the impugned order is, on the investigation and the affirmance of that ground it falls outside the scope of section 22 of Jammu and Kashmir Village Panchayat Act, 1958 and is therefore ultra vires of the powers of the Assistant Commissioner under the said section.