Hari Singh v. Ramjas — 1958 DIGILAW 101 (ALL)

JUDGMENT Jagbans Kishore Tandon, J. - The petitioner and the first respondent were the two candidates for the office of Pradhan of Gaon Sabha, Nainkhera at the last general elections held on 15-12-1955. There were more than one polling places, but whether there were two only or more is not clear. The petitioner secured a majority of votes and was declared elected on 7-1-1956. Ramjas, the first respondent, filed an application questioning the petitioner's election under section 12C of the UP Panchayat Raj Act. In this application he challenged the petitioner's election on a number of grounds, including the ground that the election return of ward No. 2 had been tampered with by altering the figures of votes recorded in favour of the two contestants. He claimed that he had received 135 votes while Hari Singh, the petitioner in this court had received 114 only. He says that these figures were changed to 125 and 124 respectively. There were allegations against the Presiding Officer also and against the Panchayat Secretary as well. On behalf of the petitioner, so far as the allegation with respect to tampering of the polling return of ward No. 2 was concerned, the reply was that the same had been done by Ramjas himself subsequently after the results were declared and the election petition had been filed. 2. The application filed by Ramjas was not verified. Therefore another ground urged on behalf of Hari Singh, the petitioner, was that the same required to be verified under the law and in the absence of the verification the application was invalid. On the objection of Hari Singh to the above effect Ramjas seemed to have approached the SDO to permit him to verify the application. The SDO granted his request. One of the grounds which were taken by Hari Singh before the SDO and which has been repeated here also was that no amendment of the petition could be made at that stage. 3. The SDO did not accept the objections urged on behalf of Hari Singh. He, on the other hand, found that the election return in respect of ward No. 2 had been tampered. He therefore by his order dated 31-5-1956 set aside Hari Singh's election and declared a casual vacancy. 3. The SDO did not accept the objections urged on behalf of Hari Singh. He, on the other hand, found that the election return in respect of ward No. 2 had been tampered. He therefore by his order dated 31-5-1956 set aside Hari Singh's election and declared a casual vacancy. Against the above order of the SDO Hari Singh has come up to this Court by his present petition u/Art. 226 and the relief prayed for is that the order be quashed. The grounds urged in support are that the election petition was not entertainable as it was not duly verified, that the SDO had no jurisdiction to allow the amendment of the petition, that the finding of the SDO about tampering was improper and that even after his finding that there was tampering in the polling return of ward No. 2 the course open to him was to order a repoll at the polling station and not, as he did, to set aside the election as a whole. Some other grounds urged were that the SDO failed to examine certain witnesses, that he acted illegally in refusing to take down evidence and, lastly, that an Additional SDO has no jurisdiction to hear the petition. But none of these grounds were urged by the learned Advocate for the petitioner at the time of the hearing. 4. The learned counsel for the petitioner has not been able to draw my attention to any provision either in the Panchayat Raj Act itself or in the rules framed thereunder requiring an application filed under section 12C of the Act to be verified as provided in the case of plaints by the CPC. He has however urged that since the procedure applicable to the trial of suits has been made applicable to the trial of these applications and in suits under the CPC a plaint has to be verified the application under section 12C should also be verified. R. 25(1) of the UP Panchayat Raj Rules makes provision that an election petition shall be tried by the SDO in accordance with the procedure applicable under the CPC to the trial of suits. This provision therefore applies after the petition has been filed under section 12C. There is no provision in it requiring that the application itself shall be verified in the same manner as a plaint is required to be. This provision therefore applies after the petition has been filed under section 12C. There is no provision in it requiring that the application itself shall be verified in the same manner as a plaint is required to be. There is no substance in this contention and it must therefore be rejected. 5. The ground that the SDO allowed the petition to be amended has similarly no force. No particulars in the petition were amended. The respondent only asked permission to enter his verification on the application without seeking to amend any allegations of fact or of law made therein. There was thus no amendment in effect. All that has been done was that the application was verified by the applicant at a subsequent date. Apart from this, no such verification was necessary otherwise also, I do not under the circumstances consider that any injustice resulted on account of the so-called amendment. 6. With regard to the remaining ground, namely, whether there was tampering with the election return in ward No. 2 and it was necessary for the SDO to order re-polling at that place and not set aside the election, the order made by the SDO shows that he after considering the polling return and the writing on it found that there was tampering. The petitioner has however, urged that this tampering was done by the respondent himself, for which however there is no support in the order of the SDO. There is no other material to accept this allegation. The finding that would remain is that the election return of ward No. 2 had been tampered with. 7. R. 19(f) of the Panchayat Raj Rules requires that where any polling return has been tampered with the election of that polling station shall be void. In view of the fact of tampering of the return of ward No. 2 the election at this polling station became void. Sub Rr. 2 and 3 of the same rule requires that where the polling becomes void u/Sub R. (1) a fresh poll shall take place. There cannot be any doubt that once the polling return had been tampered with the polling at this polling centre became void and a fresh poll was necessary. But this was not done, with the result that there was no compliance with the mandatory provision in R. 19(f). There cannot be any doubt that once the polling return had been tampered with the polling at this polling centre became void and a fresh poll was necessary. But this was not done, with the result that there was no compliance with the mandatory provision in R. 19(f). The SDO was therefore authorised under section 12C(b)(ii) of the Panchayat Raj Act to declare the election invalid. The learned counsel for the petitioner has nonetheless contended that the proper order for him to make was that re-polling shall take place at this polling centre and not disturb the polling in so far as the remaining polling centres were concerned. R. 25(3) of the Rules says that if the SDO finds that the election of any candidate is invalid he shall either declare a casual vacancy or declare another candidate to be duly elected. This rule has been made in pursuance of section 12C(4) of the Act. In accordance with this rule the SDO can make either an order declaring a casual vacancy, in which case election will have to be held in the manner provided for casual vacancies, or declaring the candidate to have been duly elected. No third course is open to him. He cannot declare an election to be partly valid and partly invalid as would be the effect if the contention of the learned counsel is accepted. I do not think that the order passed by the SDO can be challenged on that ground. 8. In the result the petition fails and it is accordingly dismissed with costs. The stay order is discharged.