- (1.) THIS is a writ petition under article 226 of the Constitution of India by Kirorilal and Kalyansingh, who are residents of villages Dandu and Indu respectively.
(2.) RESPONDENTS Nos. 1 to 4 have not cared to file any reply or present themselves in the Court and, therefore, the application has been heard against them ex parte. RESPONDENTS No. 5 to 9 have appeared through their counsel and contested the application. It would be proper to first set out in brief those facts, the correctness of which has not been challenged by the contesting respondents and which have given rise to this application. The petitioners and non-petitioners Nos. 4 to 9 are residents of different villages which are situated within the jurisdiction of Lakhan Panchayat Circle in Bharatpur District. The strength of the said Panchayat as declared by the Government consists of fourteen Panchas. The election of the parchas was held in the month of July 1958, but during the course of election, there were some disturbances and hence only nine panchas were declared elected by the then Returning Officer. The election of the remaining five Panchas and Sarpanch could not be held and so it was postponed. Thereafter the Collector of Bharatpur, Shri M. M. Kohli, appointed the Tehsildar Deeg as Returning Officer and directed him, by his letter dated 19 8-1958 (which is on record and marked Ex. P-l) to hold the election of five Panchas, Sarpanch and Up-sarpanch on 5. 9. 1958. Amongst the five Panchas, two Panchas were to be elected from Dandu Ward, two Panchas from Khan Saman and Indu ward and one Panch from Maharath Ward. The Sarpanch and Up-sarpanch were to be elected by the electors and Panchas present according to Rajasthan Panchayat Election Rule , 1954 (which will hereafter be referred to as the Rules), Sometime after Ex. p-1 was despatched, Shri M. M. Kohli was transferred from Bharatpur. On 1. 9. 1958 the Officiating Collector and District Magistrate, Bharatpur Shri Raghuraj Singh issued another order No. 9668 (marked Ex. P-2) whereby respondent No. 3 Shri Gopal Kamthan, Tehsildar Bayana was appointed as Returning Officer in place of Tehsildar Deeg. The date of election 5. 9. 1958 was, however, not changed. Respondent No. 3 conducted the election accordingly on 5. 9. 1958 and on the same day he declared respondent Nos. 7 and 8 elected from Dandu Ward unopposed. Respondents Nos. 5 and 6 were declared elected from Indu Ward and Shri Jagram from Maharath Ward. Respondent No. 7 was declared as Up-sarpanch. The petitioners have challenged the election of the said five Panchas and it is further contended that the election of respondent No. 7 as a Panch being invalid, his election as Up-sarpanch becomes invalid automatically. Regarding respondents Nos. 7 and 8, who have been declared elected from Dandu Ward, it has been urged that petitioner No 1 Kirorilal and one Lal Singh son of Shriram (who is not a party to this case) had opposed them as duly nominated candidates, but the Returning Officer, without any request by petitioner No. 1 or Lal Singh, made a declaration that they had withdrawn themselves from the contest: and thus he wrongly declared respondents Nos. 7 and 8 elected unopposed. As regards respondents Nos. 5 and 6, it has been stated that the Returning Officer did not count and record the votes of the contesting candidates in Khan-Sawan and Indu Ward, and that he declared them elected without going through the procedure laid down by the rules and hence there election is also illegal. About the last respondent No. 9, it is alleged that the Returning Officer committed a mistake in counting the votes and, therefore, his election was also vitiated. The mistake pointed out by the petitioners is that according to the Returning Officer, Jagram had scored 65 votes and his opponent Khusiram had scored 53 votes, that the total number of votes thus came to 118, while the total number of voters in the ward was less than 118 and the counting was thus obviously wrong. Learned counsel for the respondents has urged in reply that all the irregularities alleged by the petitioners are imaginary and not based on facts. It is asserted by him that petitioner No. 1 and Lalsingh had certainly withdrawn themselves from the contest in Dandu ward, that there was no mistake in counting the votes in Indu ward or the Maharath ward. It is further contended that if the petitioners had any grievance about any irregularity having been committed in conducting the election, they should have filed an election petition in which all the allegations could be thrashed out on the basis of evidence which could be produced by both the parties, and that an efficacious alternative remedy being available to the petitioners, the present writ application does not lie. Learned counsel for the petitioners has argued that once the Tehsildar Deeg was appointed as Returning Officer by the then Collector Shri M. M. Kohli on 19 8-1958, his successor Shri Raghuraj Singh had no authority to appoint respondent No. 3 as Returning Officer in his place and that the said appointment being unauthorised, the entire proceedings taken by respondent No. 3 on 5. 9. 1958 were illegal. It is contended that since the petitioners were challenging the validity of the entire election held on 5. 9. 1958, the proper remedy was by way of writ application and not by an election petition under r. 19 of the Rules, which is meant for challenging the validity of the election of a particular Panch, Sarpanch or Up-sarpanch only. In support of his contention, learned counsel has referred to Prabhudnyal vs. Chief Panchayat Officer, Jaipur (1 ). In that case, it was alleged that the Returning Officer had contravened the provisions of r. 4 of the Rules inasmuch as the wards were not announced seven days before the date of election. It was held by a Division Bench of this Court that the announcement of wards only five days before the date of election was no announcement under the law and that an election in consequence of such an illegal announcement was no election at all. It was observed that r. 4 contained mandatory provision and, therefore, it was necessary to follow it strictly before an election in the Panchayat Circle took place. In the above case it was contended on behalf of the opposite parties that the petitioners had an alternative remedy of filing an election petition under r. 19 and, therefore, it was not proper for the court to interfere in its extraordinary jurisdiction. This argument was repelled and it was observed as follows: - "election R. 19 contemplates election petition against individual Panchas. It does not contemplate an election petition asking the tribunal to declare the entire election invalid on the ground of a fundamental deficiency in carrying out the mandatory Rules relating to the holding of the election. That in our opinion, is a different matter altogether, and r. 19, in our opinion, does not over this kind of deficiency. We are, therefore, of opinion that an elector could bring the matter before us so long as he does not challenge an individual's election only on the basis of the grounds mentioned in r. 20". Learned counsel for the contesting respondents has tried to challenge the correctness of the view taken in the above case, but we do not propose to enter into that matter,since we are of opinion that the objection raised by the petitioners' learned counsel is not correct and the entire election is not vitiated. Rule 3 of the Rules, on which reliance has been placed by the petitioner's learned counsel, runs as follows: - "3. Whenever a Panchayat shall have been ordered to be established under sec. 3 and the number of the panchas thereof shall have been fixed under sec. 4, the Chief Panchayat Officer or Collector shall appoint the Tehsildar or any other officer to be the Returning Officer for the purposes of these rules and the Chief Panchayat officer shall communicate to him: (a) 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 (b) the date fixed by him for holding the election". It would appear from the language of the above rule that it empowers the Chief Panchayat Officer and the Collector both,to appoint a Tehsildar or any other officer to be the Returning Officer for purposes of the rules. In the present case, the Collector had appointed the Tehsildar Deeg as Returning Officer by his order dated 19. 8. 1958 (vide Ex. P. 1 ). His successor Shri Raghuraj Singh later on appointed respondent No. 3, who was also Tehsildar as Returning Officer on 1. 9. 1958 (vide Ex. P. 2) in place of the Tehsildar Deeg. Learned counsel for the Petitioner has not urged that Shri Raghuraj Singh was not a Collector or that he had no authority to appoint a Tehsildar as the Returning Officer. It is also not urged that respondent No. 3 was suffering from any legal disqualification to be appointed as Returning Officer. What is urged by the learned counsel is, that the Tehsildar Deeg having once been appointed as a Returning Officer, he could not be removed from that office so long as the election was not held and hence the appointment of respondent No. 3 was illegal. We have given due consideration to this argument and we think that there is no substance therein. It may be pointed out that the Tehsildar Deeg was not removed from his service and the Collector Shri Raghuraj Singh appointed respondent No. 3 as Returning Officer in place of the Tehsildar Deeg, since he thought that the presence of the Tehsildar Deeg was necessary at Deeg itself on account of certain reasons which he has given in Ex. P. 3. We are not prepared to accept the argument of the learned counsel to the effect that once a certain Tehsildar is appointed as the Returning Officer by a collector, he cannot be replaced by him by another Tehsildar till the election is over. If that argument is accepted, then it would create serious difficulties. For instance, if a certain Tehsildar, who is appointed as a Returning Officer, unfortunately dies before the date of the election or if he meets with a certain accident or is attended by certain serious illness or for any other reason becomes incapacitated to conduct the election, the Collector would have no authority left to appoint another Tehsildar as a Returning Officer in his place for holding the election. R. 3 contains no provision to show that once a Tehsildar or any other officer is appointed as a Returning Officer, he cannot be replaced by the Collector by appointing another Tehsildar or any other officer in his place so long as the election is not over. It cannot, therefore, be said that Shri Raghuraj Singh had contravened the provisions of any law in appointing respondent No. 3 as a Returning Officer by his order dated 1. 9. 1958. This was the only common objection on account of which the election of all the Panchas made on 5. 9. 1958 has been challenged by the petitioners and since it does not stand, the writ petition is not maintainable. On other grounds which have been raised by the petitioners, they could certainly challenge the election by way of an election petition and it has been held by a Division Bench of this Court in Teckchand vs. Banwarilal (2) that where the petitioner has a remedy to question the validity of the election by an election petition, the High Court should never interfere before that remedy is exhausted. Learned counsel for the petitioners has next urged that if petitioner No. 1 were allowed to contest the election by respondent No. 3 and if he were defeated in that contest, then he could file an election petition under r. 19 on the ground of misconduct, corrupt practice or irregularity. But since he was not a defeated candidate, he could not present an election petition and his remedy is only by way of a writ application. In support of his argument, learned counsel has referred to Anandilal vs. Chief Panchayat Officer (3 ). In that case it was held that "a candidate cannot be said to have been defeated unless he has an opportunity to enter into a contest with others and solicit the votes of the electors and then lose on account of not being able to get sufficient number of votes from voters. " It may be pointed out that this observation was made in a case in which a candidate's nomination paper was rejected on the ground that he was absent at the time of the scrutiny. It was thought by the learned Judges that the said candidate's nomination paper having been rejected, he had no opportunity to contest the election and, therefore, he was not a defeated candidate. It may be observed that the present case is distinguishable from Anandilal's case (3) inasmuch as the first petitioner's nomination was not rejected. He had an opportunity to contest other nominated candidates and if he withdrew from the contest on realising his weakness, then he accepted his defeat and he was as much a defeated candidate as he would have been if he were defeated after the actual polling of votes had taken place. In our opinion, a candidate who enters the arena after his valid nomination and who losses the election thereafter does come within the meaning of a defeated candidate. If he withdraws from the contest after his nomination on account of his weakness then he accepts his defeat. If he is wrongly shown as withdrawn by the Returning Officer, then the defeat is wrongly foisted upon him and in that case also he can file an election petition as a defeated candidate. If in any case a candidate withdraws himself to oblige his opponent, then he cannot make any valid grievance against his own generosity. It is urged by learned counsel that respondent No. I and Lal Singh had withdrawn from the contest and, therefore, this Court must interfere in the matter. It may be observed that this allegation has been denied by the contesting respondents who have stated that petitioner No. 1 and Lal Singh did tell the Returning Officer in their presence that they did not want to contest the election and that this was done because they saw no chance of their being elected. The question whether petitioner No. 1 and Lal Singh actually withdrew from the contest or not is purely one of fact and we cannot go into that question in our extraordinary jurisdiction. The contesting respondents have presented before us a copy of the report of the Returning Officer made under ruels 16 and 17. We have also seen Ex. P. 5 which purports to have been prepared by the Returning Officer on 5. 9. 1958, i. e. on the date of election and we find that there is a note on that document that petitioner No. 1 and Lal Singh told Returning Officer that they did not want to contest the election. We cannot presume in the petitioners' favour that this report was wrongly made by the Returning Officer. The proper course for petitioner No. 1 was to file an election petition so that the tribunal could record evidence of both the parties and decide on its basis whether petitioner No. 1 had actually withdrawn from the contest or not. Learned counsel has urged that even if it be assumed that petitioner No. 1 had withdrawn from the contest, he had no right to do so after he was nominated by the electors and that it was the duty of the Returning Officer to call upon the electors to cast their votes for him. We would have proceeded to examine this aspect of the case if this writ application were filed by ten duly qualified electors. We cannot permit a person to take advantage of his own wrong and to invoke the extraordinary jurisdiction of this Court to give a decision in his favour. If it was true that petitioner No. 1 had withdrawn himself from the contest, then we cannot allow him to argue in this Court that although he had committed a mistake, the Returning Officer ought not to have allowed him to do so. The writ petition of petitioner No. 1 has thus no legs to stand. As regards petitioner No. 2, his objection is that the Returning Officer did not count and record the votes of the contesting candidates in his ward. He could certainly raise this objection in an election petition and, therefore, his writ application is not maintainable. Similarly, the objection to the effect that the counting of votes in Maharath Santhri, Dhokas Godela ward was not done correctly could be taken in election petition in view of this Court's decision in Teckchand vs. Bhanwarilal (2) and we cannot interfere in the matter in our extraordinary jurisdiction since the proper course for the petitioners was to file an election petition. The writ application is therefore dismissed. The respondents Nos. 5 to 9 will get Rs. 50/- as costs from the petitioners. . ;