Jagat Narayan - (1.) THIS is a petition under Article 226 of the Constitution by one Bhanwar Singh against an order of Civil Judge, Jodhpur, acting as a Tribunal under the Rajasthan Panchayat Samitis and Zila Parishads (Election Petition) Rules, 1959 declaring Sohan Singh respondent as a duly elected Pradhan under rule 9 (2) (b).
(2.) THE election of the Pradhan of the Panchayat Samiti Jaisalmer was held on 11.1.61. THE nomination papers of four persons were accepted for this office - Bhanwar Singh, Sohan Singh, Guman Singh and Arjun Singh. Guman Singh and Arjun Singh withdrew their candidature and Bhanwar Singh and Sohan Singh contested the election. Bhanwar Singh polled 22 votes and Sohan Singh polled 14 votes. As a result, Bhanwar Singh was declared as elected. Sohan Singh filed an election petition against the election of Bhanwar Singh on the ground that the latter was below 25 years, of age on the date of filing his nomination paper. He also prayed that he may be declared elected in place of Bhanwar Singh. THE Tribunal held that Bhanwar Singh was below 25 years of age and set aside his election. It also declared Sohan Singh as duly elected in place of Bhanwar Singh under rule 9(2) of the Election Petition Rules. THE relevant portion of rule 9(2) runs as follows : - "If the Judge finds that the election of any person was invalid, he shall either - (a) declare a casual vacancy to have been created, or (b) declare another candidate to have been duly elected, whichever course appears, in the particular circumstances of the case, the more appropriate." It is contended on behalf of the petitioner that the discretion conferred on the Tribunal under the above provision is a judicial discretion which is to be exercised in accordance with the provisions of the Rajasthan Panchayat Samitis and Zila Parishads, Act 1959 and the rules framed thereunder and where the Act and the rules are silent, in accordance with the general law relating to elections. It is pointed out that under rule 9 (7) (a) of the Rajasthan Panchayat Samitis and Zila Parishads (Election of Pradhan, Up-Pradhan, Pramukh and Up-Pramukh) Rules, 1959, the Returning Officer is only empowered to declare the candidate securing largest number of valid votes to have been elected and the Tribunal cannot, in exercise of the powers conferred under rule 9 (2) (b) of the Election Petition Rules, declare a candidate to be elected who has not secured the largest number of valid votes. Further that in the absence of any evidence to show that the voters were aware of the disqualification of Bhanwar Singh to stand for election, the votes cast for him are valid votes as his nomination paper was duly accepted by the Returning Officer. It is contended that it was Bhanwar Singh who polled a majority of valid votes and not Sohan Singh and Sohan Singh could not therefore have been declared to be duly elected under rule 9 (2) (b) of the Election Petition Rules. For the last proposition reliance is placed on the decision of their Lordships of the Supreme Court in Keshav Lakshman vs. Dr. Deorao (1), on the decision of a Full Bench of the Madras High Court in Gopala Ayyangar vs. Mahomed Ibrahim Rowther(2) and on the observations made in Article 549 of Volume 14 of Halsbury's Laws of England, Lord Simonds Edition. In the Supreme Court case out of the two candidates standing for election the respondent having secured 22914 votes as against 14885, cast for the appellant, was declared elected. On an election petition by the appellant, the Election Tribunal declared the election of the respondent void on ground of his disqualification under Art. 191(1)(a) of the Constitution and also declared the appellant as duly elected under sec. 101 (a) of the Representation of the People Act 1951. While holding that the Election Tribunal was in error in declaring the appellant to have been duly elected it was observed: "It is true that the acceptance of a nomination paper after scrutiny is not final or conclusive but can be set aside, by the Election Tribunal, but the acceptance of the nomination paper, under Sec. 36 (8) makes the candidate, whose nomination paper is accepted after scrutiny, a validly nominated candidate at least for the purpose of receiving votes at the election. This position is further reinforced by the provisions of R. 58 which provides that every ballot paper which is not rejected under R. 57 should be deemed to be valid and must be counted. The question of throwing away of votes, therefore, cannot arise, in the absence of some special pleading that particular voters had cast their votes with knowledge or notice that the candidate for whom they had voted was not eligible for election and that consequently they had deliberately thrown away their votes in favour of the disqualified person. No such allegation of knowledge or notice was made in the petition and the appellant could not be heard to say that he might have proved the same had the respondent raised an issue on the point. Indeed under Sec. 191 (a) the onus was on the appellant to allege and prove that he had received a majority of the valid votes and he should have adduced evidence in support of that claim. This the appellant had failed to do." In Gopala Ayyangar Vs. Mahomed Ibrahim Rowther(2) the candidate who obtained the greatest number of votes at a municipal election was unseated on the ground that he was interested in a municipal contract and that therefore he was disqualified from sitting. The petitioner claimed the seat but he did not allege that the disqualification under which the successful candidate was ultimately found to labour was known to all or any of the voters who cast their votes for him. It was held that a second election must be ordered and the candidate who stood next in rank could no be declared elected. It was observed: - "The first argument on behalf of the second respondent was that R. 12 of the rules for the decision of disputes as to the validity of an election means that, if the seat were claimed by the petitioner, the Judge must declare him duly elected and that the option of ordering a second election only applies to cases where the petitioner did not claim the seat. That seems to us a quite untenable view and we do not think that the draftsman of these rules and it; is a matter of common knowledge that both the District Municipalities Act (V of 1920) and the rules drawn under it were very largely based on English precedents and English decisions - could have meant to overlook the fundamental principles which have governed English Electoral Courts for many years. The principles appear to be these, and we put them better than they were put in the argument of IV. r. Corrie Grant in Hobbs Vs. Morey(3). He says, "the principle of Election Law is that, when there has been an election the candidate who is declared to be elected must be shown to have the majority of votes. This prima facie requirement of the law is subject to a modification. He goes on, "if however a candidate is disqualified by status as in the case of women or felon, the votes given for that candidate will be held to have been thrown away and the opposing candidate, although in fact he has received a less number of votes, will be declared to be elected. That was the argument which was accepted by the learned Judges and on which Mr. Justice Kennedy's judgment is based. There are several authorities which we need not trouble to go into. The effect of those authorities is that, if a voter throws away a vote by ignoring something which he could have known and which would have told him that he was throwing away his vote because he was giving it for a person who could never succeed in the election, then his vote has to be taken as wiped out of the ejection, and if there are enough of such votes to destroy the majority, the man who has the next highest number of votes can be declared duly elected: but, if the votes were given in ignorance of the disqualification under which the candidate of his choice was in fact labouring, then it would be inequitable to allow the votes to be thrown away for that reason and the only proper course is to order a fresh election. In Halsbury's Laws of England the law about votes given to a disqualified candidate is enunciated as follows in Article 549: - "Votes given for a candidate who is disqualified may in certain circumstances be regarded as not given at all or thrown away and for so deciding a scrutiny is not necessary. The disqualification must be founded on some positive and definite fact existing and established at the time of the pole so as to lead to the fair inference of wilful perverseness on the part of the electors voting for the disqualified person. Examples of the sort of disqualification that will cause votes to be thrown away are, being an alien, infant, or a person convicted of felony and sentenced to a term of imprisonment exceeding twelve months and still serving the sentence, or possibly holding an office of profit under the Crown. If, however, the disqualification is not notorious and depends on legal argument or upon complicated facts and inferences it would appear that even though the candidate may be unseated by reasson of his disqualification the votes given for him will not be thrown away so as to give the seat to the candidate with the next highest number of votes For the votes given for a candidate to be thrown away the voters must before voting either have had or be deemed to have had notice of the facts creating the candidate's disqualification. It is not necessary to show that the elector was aware of the legal result that such a fact entailed disqualification. Votes given without such notice are good. If after deducting the votes given after such notice from the total number of votes given for the disqualified candidate he remains in a majority, the minority candidate cannot be seated and there must be a fresh election." Having heard the learned counsel for the parties I am satisfied that the above contentions made on behalf of the petitioner must be upheld. Under rule 9(7)(a) of the Election of Pradhan Rules the Returning Officer is only empowered to declare the candidate securing the largest number of valid votes to have been elected and it stands to reason that the Tribunal cannot, in the exercise of the powers conferred under rule 9(2) (b) of the Election Petition Rules declare a candidate to be elected who has not secured the largest number of valid votes. It is not open to the Tribunal to consider a course to be more appropriate which is against the provisions of the Act or the rides framed thereunder or the general law relating to elections. Elections are frequently fought on party basis and there are. covering candidates who file nomination papers along with the main candidates. These covering candidates withdraw their nomination paper's after the nomination papers filed by the main candidates are accepted. That appears to have been the case in the present election also. Guman Singh and Arjun Singh appear to have been the covering candidates of Bhanwar Singh and Sohan Singh. They withdrew their nomination papers [after the nomination papers of Bhanwar Singh and Sohan Singh were accepted. If Bhanwar Singh's nomination paper had been rejected then in all probability his covering candidate would have contested the elections and there were chances that the votes cast for Bhanwar Singh would have been cast for his covering candidate. That appears to be the reason for the rule which is firmly established that a candidate who stands next in rank cannot be declared to be elected in the event of the successful candidate being held to be disqualified, unless he has secured a majority of valid; votes. The votes given for a candidate who is disqualified may however be regarded as thrown away when the disqualification is notorious or when a particular voter is aware of it. It was contended on behalf of Sohan Singh that in the present case all the voters should be regarded as being aware of the disqualification of Bhanwarsingh as an objection was taken before the Returning Officer that he was below 52 years of age. I am unable to accept this contention. According to the scholar's register of Bhanwar Singh which was produced before the Returning Officer his age on the date of filing the present nomination paper was 24 years 7 months and some days. According to his horoscope which was produced before the Resturning Officer his age on that dale was 26 years. Further at an election held about one and a half year earlier Bhanwar Singh had been elected as a Sarpanch. No one is qualified to be elected as a Sarpanch unless he is 25 years of age. The Returning Officer held Bhanwar Singh to be over 25 years of age. Under these circumstances it cannot be said that the voters were aware that Bhanwar Singh was less than 25 years of age. The votes given by them for Bhanwar Singh cannot be regarded as thrown away votes. Apart from this, as was observed by their Lordships of the Supreme Court in Keshav Lakshman V. Dr. Deorao(l) it was for the person who had challenged the election of Bhanwarsingh to have alleged and proved in the election petition that the particular voters had cast their votes for Bhanwar Singh with knowledge that he was not eligible for election. This was not done. The other contentions raised in the writ petition were not pressed by the petitioner. In the result the writ petition is allowed in part as indicated above. The order of the Election Tribunal declaring Sohan Singh to be duly elected is set aside. A copy of the order of this Court should be sent to the Collector Jaisalmer so that he may take steps for the election of Pradhan in place of Bhanwar Singh whose election was set aside by the Tribunal. In the circumstances of the case, I direct that parties shall bear their own costs of this writ petition. ;