- (1.) THIS is a petition by Hiralal under Art. 226 of the Constitution of India. The respondents are the Chief Panchayat Officer, Rajasthan, Jaipur, Shri Purshotamlal Mehta, District Panchayat Inspector, Kotah, Seth Radha Kishen and the Tehsildar, Tehsil Chechat. District Kotah.
(2.) THE case of the petitioner is that 27th of February, 1956 was fixed for the conducting of election of the Gram Panchayat Morak. Respondent No. 2 namely Shri Purshotamlal (hereinafter to be referred to as the Returning Officer) started the election of the Panches and after it had been completed, he declared the names of 12 Panches who were duly elected on the spot. THEreafter the Returning Officer proceeded to elect the Sarpanch and invited nomination for the same. THEre were two validly nominated candidates namely the petitioner and Seth Radha Kishen respondent No. 3 for the office of the Sarpanch. When the Returning Officer was to start polling in accordance with Rule 10 of the Rajasthan Panchayat Election Rules, 1954 (hereinafter to be referred to as the Election Rules), all of a sudden it began to rain very heavily and it was not possible for the Returning Officer to count the votes till evening and consequently, the election of the Sarpanch as required by the rule could not be completed. Only the votes which could be counted before it began to rain, were counted by the Returning Officer. But as the electors had to leave the place of election on account of rains without getting their votes recorded, the Returning Officer did not declare under Rule 12 of the Election Rules, the result of the election of the Sarpanch and submitted a report to respondent No. 1. THE Chief Panchayat Officer respondent No. 1 having received the report of the Returning Officer sent a note to the Tehsildar, Chechat, dated the 7th of April, 1956 under Rule 18 of the Election Rules directing him to administer oath to twelve Panches who had been declared elected on the 27th of February, 1956, by the Returning Officer. As regards the election of Sarpanch, the Chief Panchayat Officer passed an order on the 16th of May, 1956 appointing the Tehsildar, Chechat to conduct the election of Sarpanch of the Morak Panchayat. Before this order could be despatched from the office of the Chief Panchayat Officer, respondent No. 3 made approaches to the authorities concerned and through the intervention of some of his party-men, the order of the Chief Panchayat Officer, dated the 16th of May, 1956, could not be complied with and respondent No. 1 issued instructions to the Tehsildar, Chechat to administer oath of office of Sarpanch to Shri Radha Kishen respondent No. 3. The order of the Chief Panchayat Officer (hereinafter to be referred to as the impugned order) has been impeached on the grounds that respondent No. 3 was not declared to be duly elected Sarpanch by the Returning Officer on the spot as required by R. 14 read with R. 12 of the Election Rules and that his name had not been notified as Sarpanch nor election of Sarpanch was announced by posting a notice at the office of the Panchayat and also by beat of drum by the Chief Panchayat Officer as required respectively by clauses (c) and (d) of R. 18 of the Election Rules and therefore, no order could be passed for the administration of oath to respondent No. 3 as Sarpanch of the Morak Panchayat. The following prayers have been made by the petitioner in the petition. (1) That a writ of certiorari be issued to quash the order of respondent No. 1 purporting to declare respondent No. 3 as duly elected Sarpanch of Morak Panchayat and directing the Tehsildar to administer oath of Sarpanch to respondent No. 3. (2) That a writ of mandamus be issued to respondent No. 1 directing him to proceed in accordance with the provisions of law and rules made thereunder to get the Sarpanch of Morak Gram Panchayat duly elected by appointing a fresh Returning Officer to conduct the election. (3) That a writ of quo warranto be issued to respondent No. 3 to quit the office of Sarpanch of the Moras Panchayat which he has usurped under the illegal order of the Chief Panchayat Officer. Of the respondents only respondent No. 3 Seth Radha Kishen has filed a reply. The Chief Panchayat Officer respondent No. 1, the returning Officer, respondent No. 2 and the Tehsildar, Chechat, respondent No. 4 have not filed any reply nor are they represented in this Court. In his reply respondent No. 3 has not admitted that the elections were interrupted on account of rains on the date of the election. He has averred that he was declared to be duly elected as Sarpanch by the Returning Officer on the spot required by the rules. He has pleaded in the alternative that the Returning Officer had no authority to withhold name and not to have mentioned the fact of declaration of the result of election for Sarpanch in his report. He says that when he came to know that his name was not notified as Sarpanch under Rule 18 of the Election Rules, he represented to the Chief Panchayat Officer and the Minister-in-charge and the Government of Rajasthan, thereupon realised its mistake and the Chief Panchayat Officer ordered under sec. 14 that oath of office of Sarpanch be administered to him (respondent No. 3 ). We have heard Shri V. P. Tyagi on behalf of the petitioner and Shri R. C. Sharma on behalf of respondent No. 3. It has been argued by Shri Tyagi that according to the report Ex. 1 of the Returning Officer, votes had not been properly cast and accounted and none of the two nominated candidates was declared to have been duly elected as Sarpanch. In his report which was submitted to Respondent No. 1 he clearly said that no body could be declared to have been duly elected as Sarpanch on account of interference by heavy rains. Respondent No. 1 consequently, did not notify the name of Sarpanch nor did he announce the election of Sarpanch by posting a notice at the office of the Panchayat and also by beat of drum as required respectively by clauses (c) and (d) of Rule 18 of the Election Rules. Under these circumstances the Chief Panchayat Officer was not entitled to make an order that oath of office of Sarpanch be administered to respondent No. 3. On behalf of respondent No. 3, it was argued by Shri Sharma that in the first instance, the election of Sarpanch had duly taken place in accordance with the rule and he had been declared to be duly elected as Sarpanch by the Returning Officer on the spot. It was argued that under the circumstances, the Returning Officer had no authority not to convey the information to the Chief Panchayat Officer that respondent No. 3 had been declared to be elected as Sarpanch and the Chief Panchayat Officer was not entitled not to announce the election of the Sarpanch by posting a notice at the office of the Panchayat and also by beat of drum as required respectively by cls. (c) and (d) of Rule 18 of the Election Rules. In the alternative it was argued that even if there had been any irregularity in the matter of declaration of the result of the election of Sarpanch, this Court should not interfere because under the circumstances of the case the Returning Officer was bound to declare the election of respondent No. 3 as Sarpanch and this court would not have hesitated to pass an order in favour of respondent No. 3 if he had come to this Court under Art. 226 of the Constitution of India for obtaining an appropriate writ, order or direction. We have considered the arguments of both the learned counsel. So far as the facts are concerned, the allegations in the petition and the statement in the affidavit regarding heavy rains on the date of election are supported by the report of the Returning Officer made on the very date of election. In face of this a vague denial as made by respondent No. 3 in his reply and the affidavit cannot be believed. The statement made by respondent No. 3 in his affidavit that the had been declared to be duly elected as Sarpanch by the Returning Officer on the spot immediately after the election, is also contrary to the report of the Returning Officer. The Returning Officer has clearly said in his report Ex. P 1 that he did not declare any candidate to have been duly elected as Sarpanch. The scheme of the Election Rules says that whenever an election of the Panchayat is to take place, the Chief Panchayat Officer or the Collector shall appoint the Tehsildar or any other officer to be the Returning Officer for the purposes of the Election Rules and the Chief Panchayat Officer shall communicate to him the number of wards into which the Panchayat circle has been divided under sec. 5 and the number of panchas fixed under the said section to be elected from every ward and the date fixed by him for holding the election (Rule 3, clauses (a) and (b) ). The Returning Officer shall then at least seven days before the date of election announce for the information of the inhabitants of the Panchayat Circle by notice and in such other manner as the Chief Panchayat Officer may direct the number of names of wards, it any, the number of panchas to be elected from each ward and from the entire Panchayat Circle and the date, time and place of election (Rule 4 ). Then there is a provision in rule 5 for the postponement of the election on the date originally fixed under certain circumstances. Under Rule 6, the Returning Officer has been directed to arrange electors in a particular manner and then ask them to propose and second the candidates in respect of their wards. Under Rule 7, the Returning Officer is to enter the names of the candidates and the persons who propose and second them, in the election register and to get it signed by them. Under Rule 8, the Returning Officer has been authorised to decide objections, if any, regarding any elector or proposed candidate. Under Rule 9, he is to announce at the Polling Station the names of candidates declared by him to have been validly nominated for election. Under Sub-rule 2 of rule 9, it has been provided that if the number of such candidates is equal to the number of panchas to be elected, the Returning Officer shall declare them as having been duly elected. Under Sub-rule 3 of rule 9, if the number of such candidates is less than the number of panchas to be elected, he has been authorised to declare all such candidates to have been duly elected and then call upon the inhabitants of the Panchayat Circle or the ward, as the case may be, to nominate candidates for being elected to the office of the remaining Panch or Panches and upon their failure to do so, he has been directed to proceed with the election of the sarpanch. Under Sub-rule 4 of rule 9, he has been directed to hold election in accordance with rule 10 if the number of candidates exceeds the number of panchas to be elected. Under rule 10, the Returning Officer shall require the duly qualified electors present to cast their votes, turn by turn, by show of hands, for each one of the candidates declared to have been validly nominated. Under rule 12, after the votes have been cast and counted, the Returning Officer has to announce the number of votes secured by each candidate and declare the candidate securing the greatest number of votes to have been duly elected. Rule 13 provides as to how in the case of equality of votes secured by more than one candidates, one of them is to be preferred to others. Under Rule 14, it has been provided that the Returning Officer shall subsequent to the election of Panches, get the electors, who are present there, seated together and shall require them to propose and second candidates for election as Sarpanch and that subsequent proceedings for the election of the Sarpanch shall, so far as may be regulated by the foregoing rules for the election of Panches. Rule 15 may be conveniently omitted as it relates to the election of the Up-sarpanch and is not relevant for the purposes of this case. Under Rule 16 after the election is over, it is the Returning Officer's duty to prepare and certify as correct a return setting forth for each office separately, the total number of electors who exercised their votes, the name or names of all the candidates and the total number of votes secured by each. Rule 17 requires the Returning Officer to make a report to the Chief Panchayat Officer of the result of the election appending thereto the return under rule 16 and the proceedings drawn up by him and specifically pointing out failure, if any, to elect for the purpose of taking action under sec. 8 or sub-sec. (3) of sec. 13. Then comes rule 18 which runs as follows - Upon receipt of the report under rule 17, the Chief Panchayat Officer shall, as soon as possible - (a) make appointments, if necessary, under sec. 8 or sub-sec. (3) of sec. 13. (b) make a report to the State Government for appointment, if necessary, of an additional Panch under sec. 9. (c) notify the names of the Panches, Sarpanch and Up-sarpanch so elected or appointed, and (d) announce such election and appointment by posting a notice at the office of the Panchayat and also by beat of drum. Now in this case it is quite clear that the Returning Officer did not declare under rule 14 read with rule 12 that respondent No, 5 or any body else had been duly elected the Sarpanch of Morak Panchayat. In his report which he submitted to the Chief Panchayat Officer under sec. 17, he did not say that any body had been duly elected as Sarpanch. Upon the receipt of the report under rule 18 the Chief Panchayat Officer far from notifying the name of respondent No. 3 as the duly elected Sarpanch and announcing the election of Sarpanch as required by clause (d), made an order dated the 16th of May, 1956 that the election of Sarpanch be held on the 12th of June, 1956 and the Tehsil-dar, Chechat be appointed as the Returning Officer and the petitioner, the Panchayat Officer and the Tehsildar be informed (Ex. P. 3 ). It is quite clear from the rules that the officer who is entitled to declare a particular candidate as a Panch, Sarpanch or Up-sarpanch is Returning Officer. The Chief Panchayat Officer has no such power. He is only authorised under rule 18 to notify the names of the Panch, Sarpanch and Up-sarpanch elected or appointed in accordance with the rules and announce such election and appointment by posting a notice at the office of the Panchayat and also by beat of drum. If a particular candidate has been wrongly elected as a Sarpanch, Up-sarpanch or Panch, the remedy has been given by rule 19 by way of election petition. The Chief Panchayat Officer is not entitled to order that a particular person be administered oath of Panch, Sarpanch or Up-sarpanch unless he has been declared to have been duly elected under rule 12 read with rule 4 or rule 15 as the case may be and has received a report under rule i7 from the Returning Officer about such election. To our mind the order of the Chief Panchayat Officer regarding declaration of respondent No. 3 as Sarpanch and tor administration of oath to him of that office is clearly unauthorised in the circumstances of the case, and it cannot be upheld. Learned counsel for the respondent did not seriously argue that the declaration as required by rule 14 read with rule 12 had been duly made. He also could not press that any notification or announcement was made as requi-ed by clauses (c) and (d) of rule 18. He however argued that even if there is any irregularity in the order of the Chief Panchayat Officer, respondent No. 3 was entitled to be declared as duly elected Sarpanch because the votes had been cast and counted as required by rule 12 and he had obtained large number of votes than the petitioner. It was argued that if the Returning Officer did not make any declaration as required by the rules, this irregularity of his should not be noticed by this Court to set aside the impugned order. This argument of the learned counsel might have required some consideration if we were clear in our mind that the election was properly held and respondent No. 3 had a clear right to be declared as having been duly elected. However from the papers relating to the election in question which have been placed on the record of this case, we do not find that respondent Mo. 3 has been able to make out a clear case that he was entitled to have been declared as duly elected Sarpanch of Morak Panchayat and it was a mistake on behalf of the Returning Officer not to have declared him as such. The arguments of the learned counsel for respondent No. 3, therefore, in this behalf, have no force. 11, The petition is allowed, the order of the Chief Panchayat Officer respondent No. 1 purporting to declare respondent No. 3 as duly elected Sarpanch of Morak Panchayat and directing the Tehsildar, Chechat to administer the oath of Sarpanch to respondent No. 3 is quashed and respondent No. 1 is directed to proceed in accordance with the provisions of law and the rules made thereunder to get the Sarpanch of Morak Gram Panchayat duly elected by appointing a fresh Returning Officer to conduct the said election. Respondent No. 3 is ordered to quit the office of Sarpanch of Morak Gram Panchayat under the impugned order of the Chief Panchayat Officer. The petitioner is awarded costs against respondent No. 3 including Rs. 50/- as advocate's fee.;