TYAGI, J. - (1.) THIS is a writ application of Ram Chander under Art. 226 of the Constitution challenging the correctness of the order of the Election Tribunal (Munsif), Kekri dated 11th August, 1962, whereby the election of the petitioner as Sarpanch of Gram Panchayat Tankawas was declared void and in his place Kanwar Deviraj Singh was declared as duly elected Sarpanch of that Panchayat.
(2.) IT is common ground between the parties that there were only two candidates for the election of the Sarpanch of Tankawas Panchayat, namely, petitioner Ramchander and respondent No. 1 Deviraj Singh. As a result of the poll, petitioner was declared elected to the office of Sarpanch. Thereafter the election of the petitioner was challenged by respondent No. 1 by means of an election petition under R. 78 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules, 1960 (hereinafter referred to as the Rules) on the ground that the nomination paper of the petitioner was received after 10 O'clock on 9th December, I960 which was the time fixed under R. 14 of the rules for filing of the nomination papers. The Tribunal, after recording evidence produced by both the sides, came to the conclusion that the nomination paper of the petitioner was received at 10. 18 hours on 9th December, 1960 and as such the petitioner had no right to contest the election. This finding of the learned Tribunal is not challenged by the petitioner before this court and his grievance is that even if the petitioner's nomination paper was improperly accepted by the Returning Officer, the Tribunal had no jurisdiction to declare respondent No. 1 Deviraj Singh as duly elected Sarpanch. The only point, therefore, that remains for the determination of this court is whether the Election Tribunal was in error in declaring respondent No. 1 as duly elected Sarpanch of Tankawas Panchayat. The Supreme Court authority in Keshav Lakshman Borkar Vs. Dr. Deorao Lakshman Anande (1) and two authorities of this Court in Gangaram Vs. Sheo Karan (2) and Bhanwar Singh Vs. The Civil Judge, Jodhpur (3), conclusively decide the point which has been raised in this writ application. It is also contended by the learned counsel that even if the nomination paper of the petitioner was accepted by the Returning Officer after the appointed hour under R. 14 then this action of the Returning Officer would vitiate the election, but it would not give rise to a circumstance which may entitle the respondent to claim that he should be declared as duly elected Sarpanch. It is further argued that under the Rules a candidate can be declared elected after the poll only when it is established that he had received the majority of valid votes cast at the election, and there-fore it is urged that unless such a condition is fulfilled, the Tribunal had no jurisdiction to declare the Respondent No. l as duly elected Sarpanch. In the instant case, there were only two candidates at the poll, and both of them contested the election upto the last stage when the electorate finally indicate their choice in favour of the petitioner by exercising their franchise at the polls. When the candidates permitted to go to the polls after their nomination papers were accepted by the Returning Officer under R. 18 of the Rules, only that candidate who secures the largest number of valid votes can be declared as duly elected by the Returning Officer. After the election if the dispute is raised under R. 78 of the rules then the Tribunal after making enquiry in the election dispute can make the following order under R. 85 - (a) It can dismiss the petition, or (b) Can declare the election of all or any of the returned candidates to be void, or (c) Can declare the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected. It may be noted that in the exercise of its jurisdiction under R. 85 the Tribunal can declare candidate claimed the fulfilments of the requirements of R. 41 and he could say that he was the person who had polled the highest number of valid votes at the polls. Learned counsel for the petitioner, therefore, argued that with the declaration of the Tribunal that the nomination paper of the petitioner was accepted in an improper manner by the returning officer it cannot be presumed that the votes cast by the electorate in favour of the petitioner were all invalid and it was the Respondent who polled the highest number of valid votes in his favour. Learned counsel for the respondent has however, drawn my attention to R. 16 of the rules which lays down that on or before the day appointed under sub-clause (a) of clause (ii) of sub-rule (1) of rule 14 for the presentation of nomination papers, any person qualified under sec. 11 for election as a Panch and desiring to seek such election, shall deliver to the Returning Officer his nomination paper in Form I duly filled in and signed by the candidate. It has also been provided in sub-rule 2 that any nomination paper not delivered as provided in sub-rule (i) shall be rejected. The main theme of his argument therefore, is that under R. 14 of the rules, the time is fixed by the Return-ing Officer for the presentation of nomination papers and after the expiry of that time if any nomination paper is presented to the Returning Officer then that nomination paper cannot be deemed to be a nomination paper in the eye of law and under sub-rule (2) of rule 16 it is incumbent on the Returning Officer to reject such a paper and not to consider it at all at the time of the scrutiny. His further contention is that such a nomination paper which was filed after the fixed hour does not confer any right on the petitioner to contest the election and it could not therefore be considered as valid by the Tribunal to give to the petitioner a status of duly nominated candidate under R. 20 (1) of the Rules. Under such circumstances it is urged by Mr. Gupta that the Tribunal has rightly taken his client to be the only candidated for the Sarpanchship in the field, and therefore he should be deemed to be declare elected unopposed without attracting the applicability of R. 41 and it was under the provision of R. 20 (2) of the Rules that the Tribunal could declare the respondent as duly elected Sarpanch. It is on this reasoning that he has tried to support the finding of the Tribunal. On careful consideration of this argument of the learned counsel for the respondent I find that there is an obvious fallacy in it. According to him under sub-rule (2) of R. 16 of the rules which lays down an imperative mandate of the legislature that a nomination paper delivered after the fixed time shall automatically stand rejected and such a nomination paper will be no nomination paper in the eye of law, but when the entire scheme of the election rules is carefully scrutinised and Rules 16 and 18 are read together then it becomes obvious that it is only at the time of the scrutiny that the Returning Officer has a power to reject a nomination paper which has been delivered to him after the time fixed for that purpose under R. 14. R. 16 (2) simply provides a ground to empower the Returning Officer to reject such a nomination paper, but it does not anywhere lay down the time when such an order of rejection is to be passed by the returning officer. It is only at the time of scrutiny that under the scheme of election rule, the nomination papers filed by the candidates can be rejected by the returning officer. If for one reason or the other the Returning Officer on scrutiny does not choose to reject a nomination paper which was delivered in violation of the provisions of R. 16 (i) i. e. after the expiry of the time fixed in that behalf under R. 14, then under R. 20 a candidate who proposes to contest the election on the foundation of such a defective nomination paper becomes a duly nominated candidate and he goes to the poll on account of the improper acceptance of a defective nomination paper which otherwise deserves to be rejected. In the instant case the petitioner, in para 3 of his application, has accepted this position that after the scrutiny the nomination papers of both the candidates were accepted and the Returning Officer had prepared a list in form II under R. 20 wherein respondent No. 1 was declared as duly nominated candidate, and it was in this manner that both the candidates were permitted to contest the election and to go to the polls. Under the Panchayat Rules I find that the provision for carrying out the election and declaring the result thereof after the polls are almost analogous to the provisions of the Representation of Peoples Act, 1951 and the rules made thereunder which came for the scrutiny of their Lordships of the Supreme Court in Keshav Lakshman Borkar Vs. Dr. Deorao Lakshman Anand (1) It has been held in that case by the Supreme Court that - "it is true that the acceptance of a nomination paper after scrutiny is not final or conclusive but can be set aside as it has been done in the present case 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's validly nominated candidate at least for the purpose of receiving votes at the election. In other words, the acceptance of the nomination papers by the returning officer is conclusive to this extent that the nomination paper accepted as valid should form the basis of the election and that the candidate, whose nomination paper has been accepted, must be treated as person for whom votes could be given. 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 is made in the petition and the appellant cannot be heard to say that he might have proved the same had the respondent raised an issue on the point. Indeed under sec. 101 (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 has failed to do. In the circumstances, we do not think there is any substance in this appeal which must, therefore, be dismissed. " The argument of Mr. Gupta that nomination paper delivered after the time fixed for that purpose under R. 14 is no nomination paper in the eye of law and it does no therefore confer any right on the candidate who wants to contest the election on the strength of such a nomination paper when viewed in the light of the observations of the Supreme Court in the above referred authority becomes untenable and deserves to be rejected on the very face of it. The scheme of the Panchayat election embodied in the Rules makes it clear that unless the nomination paper is rejected under R. 18 by the Returning Officer on the ground mentioned in R. 16 (2), a person who offers his candidature by such nomination paper cannot be thrown out of the election area and despite its defect he has a right to go to polls. In this view of the matter I am of opinion that the reasoning given by the Supreme Court in Keshav Luxaman's case applies on all fours to the circumstances of this case and the declaration of the Tribunal that respondent shall be deemed to be elected as Sarpanch cannot be upheld by this court. The point raised by Mr. Gupta in his argument is fully covered by the observations of the Supreme Court and the two authorities of this court referred to above. After the nomination paper of Ramchander was accepted by the Returning Officer, though improperly, he became a duly nominated candidate at the election under R. 20 of the rules and the votes cast in his favour by the voters cannot be deemed to have been thrown away by the electorate and therefore, votes polled by him cannot be ignored at the time of counting. It is not the case of the respondent that the voters had deliberately cast their votes in favour of the petitioner whom they knew that he had no right to contest this election. In view of this it is difficult for me to accept the contention of the learned counsel that the votes polled by the petitioner should be taken to have been totally wasted and they should not therefore, be counted at all. In my opinion the Tribunal has erred in declaring respondent No. l Deviraj Singh as duly elected Sarpanch of Tankawas Panchayat. The writ application is, therefore, partly allowed and the declaration of respondent No. 1 as duly elected Sarpanch of the Tankawas Panchayat by Tribunal is set aside. Copy of this order may be sent to the Collector, Ajmer for taking such action as the rules provide. In the circumstances of the case, I direct that the parties shall bear their own costs of this writ application. . ;