JAGAT NARAYAN, J. - (1.) THIS is a writ petition under Articles 226 and 227 by one Chuna Ram against an order of the Munsif, Jodhpur District, acting as a Tribunal under Rule 78 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules, 1960, setting aside his election to the office of the Sarpanch on a petition filed by Girdhari Singh, respondent No. 2. The writ petition has been contested by Girdhari Singh.
(2.) ONE election petition was filed by Girdhari Singh challenging the election of Chuna Ram, Sarpanch. Another election petition was filed by one Vijay Singh challenging the election of Chuna Ram, Sarpanch and the other ten Panchas elect-ted from the ten wards of Nevra Gram Panchayat. These two election petitions were consolidated. A reply was filed by Chuna Ram and the other ten Panchas in the election petition filed by Vijay Singh, whose election was challenged. No reply was filed in Girdhari Singh's election petition. The allegations made in Girdhari Singh's election petition were same as those made in Vijay Singh's election petition. I shall refer to the allegations made in Vijay Singh's election petition and the reply therefore filed by Chuna Ram in that petition. A notice was issued by the Collector, Jodhpur, under Rule 14 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules on 15. 12. 1964 stating that nomination papers could be filed by 10 a m. on 8. 1. 1965 before the Returning Officer Shri Shyam Sunder Lal at Panchayat Centre Nevra. The Returning Officer went to Nevra on 7. 1. 1965 and stayed at Jata School and accepted the nomination papers there upto 10 a. m. on 8. 1. 1965. As a result of the acceptance of the nomination papers Chuna Ram was declared duly elected as Sarpanch without any contest and 10 other persons were similarly declared as duly elected as Panchas from the ten wards without any contest. On 6. 2. 1965 Girdhari Singh and Vijay Singh filed the election petitions referred to above. In para 3 of the petition it was stated that a copy of (he notice under Rule 14 issued by the Collector on 15. 12. 1964 was posted on the notice Board of the Gram Panchayat Centre that is on the notice board of the Gram Panchayat office and was also published by posting in different wards. In reply to para 3 it was admitted that the notice was posted on the notice board as in different wards. It was not alleged that the Panchayat had no office. In part 4 of the petition it was stated that the Gram Panchayat Centre, i. e. the office of the Gram Panchayat was in the 'kot' of Bhim Singh since 1957. In reply to para 4 it was stated that the Panchayat Office was not situated in the 'kot' of Bhim Singh. It was no where stated in the reply where the office of the Panchayat was situated. The existence of the office of the Panchayat was not denied in reply to para 4. In para 5 it was stated that according to the notice under Rule 14, the nomination papers were to be presented before the Returning Officer at the Panchayat Centre, Nevra, and that the polling was to take place on 9. 1. 1965 at 5. p. m. at the school. In para 6 of the petition it was stated that the School where the polling was to take place was 50 ft. from the Panchayat Centre, Nevra, i. e. , from the office of the Gram Panchayat. In reply to para 5 it was stated that the nomination papers were to be accepted at Jata School. In reply to para 6 it was stated that the said school was 2 miles from the office of the Gram Panchayat. Here again the existence of the office of the Gram Panchayat was expressly admitted. It may be mentioned that there are two schools in village Nevra, one is the Government school which is referred to as Jata School and the other is a smaller private school, which is situated at 50 paces from the 'kot' of Bhim Singh who was the Sarpanch of the village Panchayat when the present elections took place. In the order-sheet dated the 6th September, 1965, the learned Munsiff has stated that it was conceded by Chuna Ram that the nomination papers were not accepted at the place specified in the notice under Rule 14. In the writ petition it was stated in para 2 that there was no place known as Panchayat Kendra, Nevra. A further affidavit was filed in which it was stated that Nevra Panchayat had no office. As I have shown above it was not the case of Chuna Ram in his reply to the election petition that the Panchayat had no office. On the contrary, from his pleadings it is clear that he admitted that the Panchayat had an office and that the notice under Rule 14 was posted on the notice board of that office. By "panchayat Centre" is obviously meant the centre of the activities of the Panchayat, which can be no place other than the office of the Panchayat. It is, therefore, quite clear that in accordance with the notice issued under Rule 14, the nomination papers were to be filed at the office of the Panchayat Nevra. According to the admission of Chuna Ram contained in his reply, the place where the nomination papers were actually accepted, viz. . Jata School is two miles from the office of the Panchayat. According to Girdhari Singh the distance is 3| miles. The exact distance is, however, not material. What is material is that the nomination papers were accepted at a place quite different from the one specified in the notice issued under Rule 14. The ground on which the election petition is based is that by accepting the nomination papers at a place other than that named in the notice under Rule 14 and by not accepting them at the place named in the notice, the Returning Officer failed to comply with Rules 14 and 16 and the result of the election was thereby materially affected in as much as the election petitioner and some other persons were prevented from filing their nomination papers for the office of the Sarpanch. The main contention in the writ petition with regard to that ground is that there is no rule requiring the Collector or any other authority to appoint a place lor the acceptance of nomination papers. The following are the relevant rules in this connection which call for the consideration:- "14. Public Notice of Election - (1) As often as a general election of Panchas in a Panchayat circle becomes necessary, or is required by the provisions of the Act, to be held for the Constitution or reconstitution of a Panchayat, the Collector shall by notification (i ). . . . . . . . . (ii) appoint thereby - (a) a day on or before which and the house thereof by which nomination papers are to be presented, (b) a day, not later than the day next succeeding the date fixed for the presentation of nomination papers, and the hour thereof, on and at which the scrutiny of such nomination papers shall be made, (c) a day not later than the day next succeeding the day fixed for the scrutiny of nomination papers, on or before which, and the hour thereof by which nominations may be withdrawn, (d) a day on which a poll shall, if necessary, be taken, and (e) the hour within which such poll shall be taken. (2) The Collector shall appoint a person by name or by virtue of his office, to act as Returnning Officer for each Panchayat Circle. " Rule 15 enumerates the duties and the powers of the Returning Officer. Rule 16 runs as follows:- "16 Presentation of nomination papers - (1) On or before the day appointed under subclause (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, hereafter in this chapter referred to as a candidate, shall deliver (in person) to the Returning Officer his nomination paper in Form 1 duly filed in and signed by the candidate. (2) Any nomination paper not delivered as provided in sub-rule (1) shall be rejected. " Rule 17 empowers the Returning Officer to appoint a day, hour and place for the scrutiny of nomination papers. Rule 19 lays down that any candidate may with-diaw his candidature by notice in writing delivered to the Returning Officer on the date and by the hour appointed under sub-clause (c) of clause (ii) of Rule 14. Here again there is no express provision for the appointing of a place where the notice of withdrawal is to be delivered to the Returning Officer. Rule 21 empowers the Returning Officer to appoint a place for holding poll. It is also provided that the notice announcing the place of polling station shall be published at the office of the Panchayat or if there is no office of the Panchayat, at the place selected for polling station a day before the elections are held. It will thus be seen that the rules expressly provide for the appointment of the place lor the scrutiny of the nomination papers and for holding the poll, but there is no express provision for appointing a place for presenting nomination papers and for delivering the notice of withdrawal. It is not reasonably practicable for an elector who wishes to stand as a candidate to find out the Returning Officer on the day of filing of nomination papers unless the place where he is to be found for accepting them is notified in advance. I he rule making authority could not have intended that such a place should not be appointed by the Collector under Rule 14. It is, therefore necessary to hold that it is implicit under Rule 14 that the Collector shall not only appoint the day and the hour by which the nomination papers are to be presented but also the place at which they are to be presented. Similarly, it must be held that rule 16 (1) authorises the Returning Officer to accept the nomination papers only at the place specified in the notice under Rule 14. Under Rule 16 (2) any nomination paper not delivered at the place named in the notice issued under Rule 14 must be rejected. The Returning Officer must reach this place sufficiently before the last hour appointed for receiving nomination papers so that all the persons who wish to present their nomination papers may be able to do so before the time fixed for this purpose in the notice under Rule 14. Another contention on behalf of the petitioner is that under Rule 78 (iv) any non-compliance with the provision of the Act or of the Rules can be made a ground for filing an election petition, but not a non-compliance with an order. In this connection reference is made to the wordings of sec. 100 (i) (d) (iv) of the Representation of Peoples Act, 1961 and sec. 34 (d) (iv) of the Rajasthan Municipalities Act, 1959, in which an order made under the Representation of Peoples Act is made a ground in the former and non-compliance with an order made under the Act or the Rules can be made a ground in the latter for filing an election petition.
(3.) IN my opinion, this contention has no force. If an order passed under a rule is not obeyed then, in my opinion, there is a non-compliance with the rule under which this order is passed. The next question to be considered is whether the election petitioner has succeeded in proving that the result of the election was materially affected by the act of the Returning Officer in accepting the nomination papers at a place other than that specified in the notice under Rule 14. On behalf of the petitioner it is contended that it has not been shown that if the nomination papers had been accepted at the place named in the notice under Rule 14 then Chuna Ram would not have been declared as duly elected. On behalf of Girdhari Singh the contention is that he and other persons went to the place mentioned in the notice under Rule 14 for the presentation of the nomination papers, but as the Returning Officer did not come to that place, they were unable to present them. It is argued that this is analogous to an improper rejection of their nomination papers. Before the Representation of Peoples Act, 1951 was amended in 1956, the election petitioner had to show even in the case of the improper rejection of a nomination paper that the result of the election was materially affected. In Surendra Nath Khosla and another vs. S. Dalip Singh and others (l) their Lordships of the Supreme Court held that there is a presumption in the case of improper rejection of a nomination paper that it has materially affected the result of the election. Such a presumption, therefore, arises in favour of the election petitioner in the present case. Naturally, however, a presumption is rebuttable and it was necessary that an opportunity for rebutting the presumption should have been afforded to Chuna Ram. In the present case no such opportunity was given to him. The only issue which arose for determination in the present case in the opinion of the Tribunal was whether Girdhari Singh and Vijay Singh were present at the place where the Returning Officer accepted the nomination papers. No other issue was framed. A list of 11 witnesses was filed by Chuna Ram on 13. 5. 1965. Out of these 11 witnesses, the Tribunal agreed to summon only the Tehsildar, the Collector and the Returning Officer. It refused to summon the remaining witnesses. In any case unless an issue was framed, Chuna Ram could not have had an adequate opportunity to rebut the presumption raised by the acceptance of nomination papers at a place other than that named in the notice under Rule 14. I accordingly allow the writ petition, set aside the order of the Tribunal and remand the election petition for decision in accordance with law after giving an opportunity to Chuna Ram to produce such fresh evidence, as he may deem necessary, to rebut the presumption that the result of the election was materially affected. It is stated in the reply to the election petition that the village people knew that the nomination papers were being accepted by the Returning Officer at the Jata School and that an agreement had taken place that certain persons would be elected unanimously and it was in pursuance of such an agreement that the elections were not contested. The election petitioner will be given an opportunity to rebut the evidence produced by Chuna Ram. The costs of this writ petition shall abide result of the case. The parties shall appear before the Tribunal on 10th October, 1966. Chuna Ram shall file his list of witnesses on that date. It shall, however, not be necessary for the parties to appear before the Tribunal on that date, if a special appeal against the above order is filed in the meanwhile. Chuna Ram shall be reinstated as Sarpanch forthwith. . ;