- (1.) THIS is a petition under Art. 226 of the Constitution by one Roop Narain against an order of Munsif Behror acting as a Tribunal under R. 78 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules 1960 (hereinafter referred to as the Rules) dismissing his election petition filed by him challenging the election of Bhonrey Lal respondent No. 2 as a Panch from ward No. 3. THIS petition was heard and allowed on March 24, 1966. But that decision was set aside on an application for review filed by Bhonrey Lal.
(2.) THERE were three candidates for election to ward No. 3. According to the counting made by the Returning Officer Bhonrey Lal received 72 Votes, Rooh Narain 71 and Kirori received 49. Bhonrey Lal was accordingly declared as duly elected. His election was challenged by Roop Narain inter alia on the ground that a vote given by an imposter in the name of Ramji Lal son of Nathu was improperly accepted by the Returning Officer and the tendered vote subsequently given by the real Ramji Lal was not counted. The petition was contested by Bhonrey Lal. With regard to Ramji Lal his allegation was that he was a supporter of Roop Narain and that he voted once for him at 2 p. m. and came again to vote for him at 3 p. m. when he was caught. To save himself he falsely alleged that the first vote in his name was cast by an imposter. The Tribunal framed issue No. 3 on the point as to whether the first vote recorded in the name of Ramji Lal was given by an imposter and recorded a finding under issue No. 6 that the vote was given by an imposter and not by Ramji Lal. On this finding the Tribunal rejected the ballot paper No. 188794 (Ex. 8) which was the first paper issued in the name of Ramji Lal. This the Tribunal did after scrutinising all the ballot papers. It was found that this ballot paper was marked for Bhonrey Lal and not for Roop Narain. When the real Ramji Lal appeared to cast a vote a ballot paper was issued to him after the Returning Officer was duly satisfied that he was the person who was enrolled as an elector. Ballot paper No. 188909 was issued to him (Ex. 7) which he marked for Roop Narain. This was kept in a separate envelope by the Returning Officer as a tendered vote. On behalf of Roop Narain it was contended before the Tribunal that the tendered vote should be counted for him and the first vote given in the name of Ramji Lal was given by an imposter. This contention was not accepted by the Tribunal on the ground that there was no provision in the Rules enabling the Returning Officer to count a tendered vote and that the Tribunal could not count it in view of the following observations made by their Lordships of the Supreme Court in Hari Vishnu vs. Ahmad Ishaque (1) - "under R. 47 (4) the Election Tribunal is constituted a Court of Appeal against the decision of the Returning Officer, and as such its jurisdiction must be co-extensive with that of the Returning Officer, and cannot extend further. If the Returning Officer has no power under R. 47 to accept a vote which has not the distinguishing mark prescribed by R. 28 on the ground that it was due to the mistake of the presiding officer in delivering the wrong ballot paper the Election Tribunal reviewing this decision under R. 47 (4) can have no such power. It cannot accept a ballot paper which the Returning Officer was bound to reject under R. 47. " The Tribunal was under the impression that there was no provision in the Rules for the recording of a tendered vote and this writ petition was decided by this Court on 24-3 66 under the same mis-apprehension. The previous decision dated 24. 3. 66 was accordingly set aside. The following R. 33-A was inserted in the Rules on 7. 11. 64 - "tendered Votes - (1) If a person representing himself to be a particular elector applies for a ballot paper after another person has already voted as such elector, he shall, on satisfactorily answering such questions relating to his identity as the Returning Officer may ask, be entitled, subject to the following provisions of this rule, to make a ballot paper (hereinafter in these rules referred to as a "tendered ballot paper") in the same manner as any other elector. (2) Every such person shall before being supplied with a tendered ballot paper, sign his name against the entry relating to him in a list in Form III. (3) A tendered ballot paper shall be the same as the other ballot papers used at the polling booth except that it shall be - (a) serially the last in the bundle of ballot papers issued for use at the polling station or booth, and (b) endorsed on the back with words "tendered ballot paper" by the Returning Officer in his own hand and signed by him. (4) The elector, after marking a tendered ballot paper in the voting compartment and folding it, shall, instead of putting it into the ballot box, give it to the Returning Officer, who shall place it in a cover specially kept for the purpose. " It is contended on behalf of Roopnarain that the Tribunal committed an error apparent on the face of the record in not counting the tendered vote of Ramji Lal in favour of Roop Narain. Reliance was placed on the decision in Subbaraya Gounder vs. Palanisami Gounder (2) in which it was observed: "we have therefore not the slightest doubt that whoever voted in his name must have done so with a corrupt intention and that therefore the case of raise personation relied on by the petitioner has been established. We may add that even it the case of false personation is negatived, the tendened votes will have to be included in the count if it be established that the tenderer is the real voter. The real voter cannot be deprived of his vote because some one had bona fide voted in his name or because the Polling Officer had wrongly put the mark against his name. In either case, he cannot be made to suffer for the consequences of the acts of others and his vote must be held to be valid. " The above decision was given concerning a bye-election for a constituency of the Madras Legislative Assembly held on 8th November 1953 under the provisions of the Representation of the People Act 1951 and the Rules framed thereunder. There is no provision in the Panchayat Act or the Rules framed thereunder expressly authorising the Tribunal to count a tendered vote on being satisfied that the ballot paper which was put in the ballot box was marked by an imposter in the name of the elector who subsequently cast the tendered vote. There was however no such express provision in the Representation of the People Act 1951 or the Rules framed thereunder. The Representation of the People (Conduct of Elections and Election Petitions) Rules, 1951 contained the following rule with regard to tendered votes: "r. 29. Tendered votes - (1) If a person representing himself to be a particular elector named in the electoral roll applies for a ballot paper or papers after another person has already voted as such elector, the applicant shall, after duly answering such questions as the presiding officer may ask, be entitled to receive a ballot paper (referred to in this Chapter and in Chapter III of this Part as a "tendered ballot paper") in the same manner as any other elector. (2) A tendered ballot paper shall be in Form 7 and shall, instead of being put into the ballot box be handed over by such person to the presiding officer who shall thereupon take such person inside the polling compartment and shall in the presence of such person endorse it with the name or names of the candidate or candidates for whom such person desires to vote and also with the name of the elector, his serial number in the electoral roll and the name of the electoral area to which the roll relates. The presiding officer shall then place the ballot paper in a separate packet set apart for the purpose. At the end of the poll the packet containing all such tendered ballot papers shall be sealed. Such votes shall not be counted by the Returning Officer. (3) The name of the constituency, the name of the elector, his serial number in the electoral roll and the name of the polling station to which the roll relates shall be entered in a list in Form 8 which shall bear the heading "tendered Votes List". The person tendering such ballot paper shall sign his name or affix his thumb-impression against the entry relating to him in that list. " 10. In Subbaraya Gounder's case (2) referred to above the tendered vote was counted on general principles. These principles are equally applicable here. Their Lordships of the Supreme Court did not have in their contemplation the counting of tendered votes when they made the observations referred to above in Hari Vishnu vs. Ahmad Tshaque (l ). On behalf of Bhonreylal it was contended that the finding of the Tribunal that the first vote was cast by an imposter is based on no evidence. Such an argument was not put forward when this writ petition was heard for the first time and it is not open to Bhonreylal to challenge the finding of fact arrived at by the Tribunal at the re-hearing of this writ petition. But apart from it, the finding arrived at by the Tribunal is supported by the evidence of Ramjilal himself and the circumstance that the first vote was cast in favour of Bhonreylal. Ramjilal was admittedly a supporter of Roop Narain and would not have voted for Bhonreylal. The Tribunal was justified on this material in coming to a finding that the first vote given in the name of Ramjilal was given by an imposter. In view of my finding above Roop Narain secured 72 valid votes and Bhonreylal secured 71. I allow the writ petition, set aside the election of Bhonreylal and declare Roop Narain to be duly elected as Panch from ward No. 3. In the circumstances of the case, I leave the parties to bear their own costs of this writ petition. . ;