Bhagoley v. Balwant Singh — 1963 DIGILAW 17 (ALL)

JUDGMENT V. Bhargava, A. C.J. - This petition under Article 226 of the Constitution is directed against an order of an election tribunal under the U.P. Panchayat Raj Act (hereinafter referred to as `the Act') by which an election petition was allowed by the tribunal, the election of the petitioner was set aside and opposite-party No. 1 was declared as a duly elected Pradhan of a Gaon Sabha. The election of the petitioner was set aside by the tribunal on the ground of gross failure to comply with the provisions of the Act and the rules framed thereunder which had materially affected the result of the election. It was urged before the tribunal in the election petition that votes of certain voters had been wrongly rejected by the counting officer. If those votes had also been taken into account, the petitioner, who had been declared elected by a majority of only four votes, would have been found to have received fewer votes than opposite-party No. 1. It was urged that in thus wrongly rejecting some valid votes, the counting officer had been guilty of gross failure to comply with the provisions of the Act and the rules framed thereunder. The tribunal, in order to decide this question, sent for the ballot papers which had been rejected by the counting officer and examined them in court. On an examination of those ballot papers, the tribunal came to the finding that 18 votes cast in favour of opposite-party No. 1, Balwant Singh, had been wrongly rejected, while 6 votes cast in favour of the petitioner had been wrongly rejected. Consequently, the tribunal held that those votes should be taken into account as their rejection had amounted to gross failure to comply with the provisions of the Act. Those votes having been taken into account, opposite-party No. 1 received 8 votes in excess of the votes received by the petitioner. Consequently, the tribunal proceeded to the next natural in fence that the result of the election had been materially affected. The tribunal, therefore, set aside the election of the petitioner and declared opposite-party No. 1 as a duly elected Pradhan of the Gaon Sabha. 2. Consequently, the tribunal proceeded to the next natural in fence that the result of the election had been materially affected. The tribunal, therefore, set aside the election of the petitioner and declared opposite-party No. 1 as a duly elected Pradhan of the Gaon Sabha. 2. The main point urged by learned counsel for the petitioner in support of this petition before us was that the election tribunal, in examining the ballot papers and in holding on the basis of that examination that there had been gross failure to comply with the provisions of the Act and the rules, had exercised jurisdiction which was not vested in it. The submission was that whenever there be any violation of any provisions of the Act or the rules made thereunder by any officer or official entrusted with duties relating to the conduct of an election, the appropriate authority, who can set aside or modify any order or declaration made by such officer or official, is the Nirvachan Nideshak (Panchayat) under Sec. 12-BB. Learned counsel urged that Sec. 12-BB having conferred this jurisdiction on Nirvachan Nideshak, we should hold that the intention was that cases of violation of any provisions of the Act and the rules made thereunder must be scrutinised solely by that officer and the election tribunal in exercise of its powers under Sec. 12-C of the Act should be held to be debarred from exercising the same powers because, if it is held that the election tribunal can also exercise the same powers, it would result in two different authorities exercising the same powers without any provision for resolving the conflict between their decisions which may possibly come into existence. It appears to us that the approach to this question suggested by learned counsel is not at all correct. 3. Under Sec. 12-C of the Act it is the sole function of an election tribunal to decide questions on the basis of which the election of a candidate already declared elected can be set aside. Sec. 12-C clearly mentions that the election of a person as Pradhan of a Gaon Sabha shall not be called in question except by an application presented under that provision of law and in accordance with it. Sec. 12-C clearly mentions that the election of a person as Pradhan of a Gaon Sabha shall not be called in question except by an application presented under that provision of law and in accordance with it. The effect of this provision is that once candidate has been declared duly elected, no other authority except an authority exercising powers under Sec. 12-C can question the election of the successful candidate and set it aside. For that purpose, an election tribunal is given the power to see whether the result of the election has been materially affected by any gross failure to comply with the provisions of the Act and the rules framed thereunder. Even if it be held that some other authority at some other stage can also examine the same question of gross failure to comply with the provisions of the Act and the rules framed thereunder, it is not possible to hold that the election tribunal thereupon become incompetent to discharge the function conferred on it specifically by Sec. 12-C of the Act. If there be any such conflict, the only proper interpretation would be that any decision given on such questions by any other authority would not, in the matter of deciding an election petition, stand in the way of the election tribunal inquiring into those questions, deciding them on their basis passing appropriate orders on the election petition. It should, therefore, be held that, if there be such a conflict, it would not affect the powers of the election tribunal and either the power of the election tribunal would be the overriding power or the power conferred on the other authority may not be exercisable and may be void. In fact, if the result of the exercise of that power is that the election of a successful candidate is to be set aside, the exercise of that power by any other authority would be void because the jurisdiction to set aside an election is exclusively conferred on the election tribunal. 4. We may, however, add that, if Secs. 12-BB and 12-C of the Act are properly interpreted, it would be found that there is in fact no likelihood of any conflict arising in the matter of decision of questions by the two different authorities mentioned those sections. 4. We may, however, add that, if Secs. 12-BB and 12-C of the Act are properly interpreted, it would be found that there is in fact no likelihood of any conflict arising in the matter of decision of questions by the two different authorities mentioned those sections. We have already indicated above that under Sec. 12-C of the Act exclusive jurisdiction is conferred on the Election Tribunal to set aside the election of a successful candidate. Consequently, we think that, if the language permits, Sec. 12-BB of the Act should be so interpreted as not to conflict with Sec. 12-C and should not be held to confer power on the Nirvachan Nedeshak (Panchayat) in such a manner as to enable that officer to set aside the election of a successful candidate. The purpose of Sec. 12-BB of the Act principally appears to be that there should be a senior officer having administrative control in the matter of elections. That is why the language used in that section is that "all elections shall be conducted under the supervision and control of the Nirvachan Nideshak (Panchayat) " This provision clearly shows that the intention of the Legislature in enacting this provision mainly was to give authority to the Nirvachan Nideshak (Panchayat) to supervise and control the conduct of elections. The section thereafter proceeded to lay down what powers could be exercised by him for this purpose and at this stage the Legislature laid down that he "may also set aside or modify any order or declaration relating to such election passed or made without jurisdiction or in violation of any provision of this Act or the rules made thereunder by any officer or official entrusted with duties relating to the conduct of such election." The submission of the learned counsel for the petitioner was that this power conferred on the Nirvachan Nideshak (Panchayat) was wide enough to permit him to modify or set aside not only orders made during the course of the election but also the declaration of result by the officer entrusted with duties relating to the conduct of the election. In our opinion, the power to set aside or modify declaration should in this section be interpreted as referring to declarations which the officer concerned may have made during the course of the election and should not include the declaration of the result which is really made after the election has been conducted and is merely a declaration of the final result of the proceedings of the election. It is to be noticed that, in the initial clause of this section, the power conferred on the Nirvachan Nideshak (Panchayat) is described by saying that elections shall be conducted under his supervision and control. The power of supervision and control is, therefore, confined to conducting the elections. Even at the later stage when power is conferred to set aside or modify orders or declarations, it is again limited by laying down that only those orders or declarations can be set aside or modified which have been made by any officer or official entrusted with the duties relating to the conduct of such election. The use of the expression "conduct of such election" it appears to us was resorted to by the Legislature with the specific object of limiting the functions of the Nirvachan Nideshak (Panchayat) to matters arising while the proceedings for election are still going on and not to the declaration of the result of the election which is to be made after the election is over. This interpretation of the scope of Sec. 12-BB of the Act has the result that the powers of the Nirvachan Nideshak (Panchayat) would not overlap the powers of the election tribunal. Sec. 12-C having laid down that the declaration of the result of a successful candidate is not to be called in question except by presentation of an election petition, it would be interpreting the provisions of the Act harmoniously to hold that section 12-BB was not intended to confer the power on the Nirvachan Nideshak (Panchayat) to set aside declarations of that nature. If we were to accept the interpretation put by the learned counsel, it would mean that under Sec. 12-BB the power was conferred on the Nirvachan Nideshak (Panchayat) to set aside declarations of results of successful candidates while under Sec. 12-C the exercise of such power was debarred. If we were to accept the interpretation put by the learned counsel, it would mean that under Sec. 12-BB the power was conferred on the Nirvachan Nideshak (Panchayat) to set aside declarations of results of successful candidates while under Sec. 12-C the exercise of such power was debarred. This interpretation would thus bring about direct conflict between the two provisions and an interpretation which has such a result cannot be accepted when a different interpretation, possible from the language would avoid such conflict, exists. 5. It is also to be noticed that Sec. 12-BB was introduced by the Legislature in this Act by U.P. Panchayat Raj (Amendment) Act, 1960 (U.P. Act No. XV of 1960) while section 12-C of the Act already existed in it. Consequently, if the intention of the Legislature had been to confer on the Nirvachan Nideshak (Panchayat) the power even to set aside declarations of results, the Legislature would surely have introduced some words in this new provision indicating that this power could be exercised in spite of the limitation placed by section 12-C. The Legislature could easily have added some such expression as "Notwithstanding anything contained in section 12-C". The legislature having omitted to do so, we are led to the necessary conclusion that the powers conferred on Nirvachan Nideshak (Panchayat) were meant to be exercised only during the conduct of the elections and that there was to be no encroachment on the authority already reserved exclusively for the Election Tribunal under Sec. 12-C of the Act. 6. In this connection a question arose whether in the course of the election there would be any declarations apart from the declarations of results which could be set aside or modified by the Nirvachan Nideshak (Panchayat) under Sec. 12-BB of the Act. In the Act itself we were not able to find that there were any such declarations, but there are provisions in the rules where the officer entrusted with duties relating to the conduct of an election has to make declarations from time to time. In rules 18-F, 19-B (1) and 20-I of the U.P. Panchayat Raj Rules the word `declare' or `declaration' is specifically used and the officer in charge conducting the elections is required to make certain declarations. In rules 18-B (4), 19-B (6) and 21-G the officer entrusted with duties relating to the conduct of an election has to make certain announcements. In rules 18-F, 19-B (1) and 20-I of the U.P. Panchayat Raj Rules the word `declare' or `declaration' is specifically used and the officer in charge conducting the elections is required to make certain declarations. In rules 18-B (4), 19-B (6) and 21-G the officer entrusted with duties relating to the conduct of an election has to make certain announcements. An announcement by the officer would not be an order. It would only be a declaration so that under these rules also there would be declarations which might require setting aside or modification by the Nirvachan Nideshak (Panchayat) in appropriate cases. The existence of these provisions in the rules shows that the Legislature in giving power to the Nirvachan Nideshak (Panchayat) to set aside or modify not only orders but also declarations had in contemplation declarations of this nature so that our interpretation that declarations of results of successful candidates are not governed by the provisions of Sec. 12-BB of the Act will not result in making that provision ineffective or meaningless. That interpretation ensures harmony between the two provisions contained in Secs. 12-BB and 12-C and that is the interpretation which we think should be accepted. 7. Our attention was drawn by the learned counsel to a decision of a learned single Judge of this Court in Sukhdev Singh v. Nideshak Panchayat Raj, U.P. Lucknow, 1962 A.L.J. 256. In that case the provisions of Secs. 12-BB and 12-C of the Act came up for consideration. In paragraph 8 of the judgment the learned Judge in our opinion rightly held that "When the legislature clearly provided that the election of a Pradhan can be challenged only in the manner laid down in Sec. 12-C, it cannot be held that the Nirvachan Nideshak (Panchayat) could exercise such powers suo motu or on the application of any person." The learned single Judge, however, proceeded further to examine the question as to what remedy would be available in cases where mistakes were intentionally committed in preparing the register of members under Sec. 9(1) of the Act. He appears to have taken the view that, if such mistakes are committed, the candidates affected by those mistakes would have no remedy at all unless, it was held that even the Nirvachan Nideshak (Panchayat) had the power under Sec. 12-BB of the Act to set aside the declaration of result and order a repoll on arriving at the finding that such a deliberate mistake had been committed. The learned Judge considered the argument advanced before him that "after an election has been held on the basis of a register of members, the Nirvachan Nideshak (Panchayat) could not, in view of Sec. 9(2) of the Act, set aside the result of an election on the ground that the register of members had not been properly prepared and consequently after modification of the register could not direct a re-poll." The learned Judge held that this contention has no force. In his opinion, the legislature had some object in mind in making this law which was to safeguard that no one commits any fraud or intentionally commits an illegality in the preparation of the register of members. For such cases, in his opinion, the Nirvachan Nideshak (Panchayat) had the power to modify the register of members before the election and he could also in view of the general provision contained in Sec. 12-BB pass a similar order after the election. In the latter case, according to the learned Judge, in order to give effect to the modification in the register of members it would be competent for the Nirvachan Nideshak (Panchayat) to set aside the result of an election which had been declared and direct a fresh poll. We are unable to agree with the view taken by him and we think that on this point that case was not correctly decided. The learned Judge seems to have been led to the view which he took because he felt that there would be no remedy open to the persons affected for redress against intentional and deliberate incorrect preparation of register of members unless it was held that the Nirvachan Nideshak (Panchayat) had the power not only to modify the register of members before the election is completed but that he has that power even after the election result has been declared and for that purpose he can exercise the power of setting aside the declaration of result. It does not appear to have been brought to the notice of the learned Judge that the language of Sec. 12-C (1) (b) (ii) of the Act is wide enough to confer on the Election Tribunal this necessary power and jurisdiction. The Election Tribunal is competent to set aside an election if there has been a gross failure to comply with the provisions of the Act or the rules framed thereunder and if the result is materially affected thereby. In cases where the Election Tribunal comes to the finding that the officer entrusted with the preparation w of register of members had deliberately and intentionally framed that register incorrectly by adding names which should not find place in it or by omitting names which should legitimately be entered in it, it would clearly be a case where that officer would be guilty of gross failure to comply with the provisions of the Act. There would be, of course, cases where the inclusion of names in the register or omission of some names from it would be bona fide which would happen whenever the entries in the register are made by the officer concerned according to the information available to him at the time of preparation of the register. Even if it happens that some names are erroneously omitted or some erroneously entered, it would not be a case of failure on the part of the officer to comply with the provisions of the Act. The remedy for such cases is already provided in the rules relating to the preparation of the register of members under which persons concerned can have such accidental errors rectified before the register is finalised. If the register is finalised after affording this opportunity, it would not be a case of any failure to comply with the provisions of the Act. Under Sec. 9(2) of the Act, the persons entered in the register of members would have the right to vote vested in them whereas those whose names are not entered would have no such right. Under Sec. 9(2) of the Act, the persons entered in the register of members would have the right to vote vested in them whereas those whose names are not entered would have no such right. We do not think that there was any intention to confer power on the Nirvachan Nideshak (Panchayat) to set aside elections merely on the ground that some names had been accidentally or bona fide omitted or included in the register of members even though the register was prepared after going through the proper interpretation of the various provisions of the Act in our opinion would be that, once the register of members had been prepared properly in accordance with law, the election held on its basis should not be called in question before or by the Nirvachan Nideshak (Panchayat). The Legislature indicated in Sec. 12-C the only circumstances under which the result of an election already declared could be interfered with. Cases where there had been deliberate and intentional mistakes in preparing the register of members would be covered by the expression "gross failure to comply with the provisions of the Act or the rules framed thereunder" and the Election Tribunal would be competent to set aside the election of that ground if the result of the election be found by him to have been materially affected by such mistakes. This provision, therefore, does clearly lay down a remedy for persons affected in cases where the result has been affected by intentional and deliberate acts of the officer entrusted with the preparation of the register so that there is in the law no such lacuna as was suggested before the learned Judge in the case of Sukhdev Singh, U.P. Lucknow, 1962 A.L.J. 256 cited above. We hold that the powers conferred on the Nirvachan Nideshak (Panchayat) by Sec. 12-BB of the Act terminate as soon as all the proceedings in the election are over and the counting has been completed and all that remains is the mere declaration of result. Once the result is declared, the powers are to be exercised exclusively by the Election Tribunal. The point urged by the learned counsel in this case that the Election Tribunal exceeded its jurisdiction in. Once the result is declared, the powers are to be exercised exclusively by the Election Tribunal. The point urged by the learned counsel in this case that the Election Tribunal exceeded its jurisdiction in. going into the question of gross failure to comply with the provisions of the Act or the rules relating to acceptance or rejection of the votes cast has no force and must be rejected. 8. Learned counsel has urged before us three other points in support of his petition. The first one of these was that the Election Tribunal acted against the principles of natural justice in scrutinising the ballot papers to find out which of them had been wrongly rejected in the absence of the petitioner and his counsel so that his judgment based on that scrutiny is vitiated in law. In the writ petition itself, no doubt, a ground was taken specifically that the Election Tribunal had done the counting after scrutiny of the rejected votes without any notice to the petitioner or his counsel or in their presence but it is significant that though this ground was taken in the petition, in the affidavit the assertions made did not support it. In the affidavit all that was stated was that the petitioner had moved an application that the ballot papers to be opened in the presence of the parties and that the counting had not been done in the presence of the petitioner. There was no assertion that the petitioner's counsel was not present nor was there any assertion that no notice of the date and time for the scrutiny had been given to the petitioner or his counsel. The fact that the petitioner in the affidavit omitted to state that no notice had been given to him or his counsel and had further omitted to aver that his counsel also was not present even though a ground was taken in the petition based on these facts necessarily leads to the inference that the ground taken was actually not supported by true facts. If in fact no notice had been given to the petitioner or his counsel and the scrutiny had also taken place in the absence of his counsel, an assertion to that effect would surely have been included in the petition in view of a ground being taken in the petition based on these facts. If in fact no notice had been given to the petitioner or his counsel and the scrutiny had also taken place in the absence of his counsel, an assertion to that effect would surely have been included in the petition in view of a ground being taken in the petition based on these facts. This point urged by the learned counsel, therefore, has no force and the procedure adopted by the Election Tribunal cannot be held to be defective or violating any principles of natural justice. 9. The next point that we need consider is that, according to the learned counsel, the Election Tribunal committed the error of scrutinising the rejected votes only and did not scrutinise the votes that had been accepted as valid. We find, however, that before the Election Tribunal there was no suggestion by any party that any error had been committed by the Counting Officer in respect of votes which had been accepted as valid votes. In the election petition the dispute was only with regard to the rejected votes. In these circumstances no occasion at all arose for the Election Tribunal to scrutinise the accepted votes for the trial of the election petition. He rightly accepted the counting of valid votes as recorded by the Counting Officer. He was only required to scrutinise the rejected votes because of the dispute between the parties in respect of them and on that scrutiny he took into account all those rejected votes which he found were valid irrespective of the fact whether they were cast in favour of one candidate or the other. The procedure adopted by him was, therefore, perfectly correct. 10. The last point urged by the learned counsel was that the Election Tribunal committed an error in accepting as valid those votes which he found were "intended" to be cast in favour of one candidate or the other. It seems that, amongst the rejected ballot papers, he held some to be valid even though the cross-mark put by the voters was not strictly in the same line as the symbol of the candidate for whom that vote has been held to have been cast. It seems that, amongst the rejected ballot papers, he held some to be valid even though the cross-mark put by the voters was not strictly in the same line as the symbol of the candidate for whom that vote has been held to have been cast. The judgment of the Election Tribunal shows that, in holding those votes to be valid, he relied on the fact that the cross-mark was so placed that the scrutiny of the ballot paper clearly showed for which candidate the vote had been intended. As long as the intention of the voter was clear, the vote was accepted as a valid vote for the candidate indicated. In cases where he found that the mark was so made that it was not possible to arrive at a definite conclusion as to the intention of the voter or wherever there was double marking, he accepted the view of the Counting Officer that those votes were invalid. Clearly, in giving this decision, the Election Tribunal observed the correct procedure and no error was committed by him. 11. The petition in these circumstances has no force and is dismissed with costs, 12. The stay order dated the 21st of August, 19 is vacated.