Research › Browse › Judgment

Madhya Pradesh High Court · body

1966 DIGILAW 123 (MP)

Rohini Prasad v. Sub-Divisional Officer, Maihar

1966-09-27

P.V.DIXIT, R.J.BHAVE

body1966
ORDER Dixit, C. J.- 1. By this application under articles 226 and 227 of the Constitution the petitioner seeks a writ of certiorari for quashing a decision of the Sub-Divisional Officer, Maihar, pronounced on 19th January 1966 allowing an election petition presented by the respondents Nos. 3 to 12 challenging the election of the petitioner as a Sarpanch of the Gram Panchayat of Jariari. The Sub-Divisional Officer held that the election of the petitioner as Sarpanch was void and directed a fresh election. 2. By rule 79 of the Madhya Pradesh Gram Panchayat Election and Co-option Rules, 1963 (hereinafter referred to as the Rules) framed under the Madhya Pradesh Panchayats Act, 1962, it is provided that the procedure of election of the Sarpanch and Up-Sarpanch shall be the same as provided in rule 78. Rule 78 lays down the procedure for the co-option of Panchas. According to these rules, a meeting of the elected and co-opted members of the Gram Panchayat was held on 2nd February 1965 for electing a Sarpanch and Up-Sarpanch of the Panchayat. The Collector had nominated the respondent No.2, Shyam Sunder, Head-Master of a High School of Amdara, for presiding over the meeting. Sub-rule (18) of rule 78 lays down that, the ballot paper shall be signed by the Chairman of the meeting and one paper handed over to each Panch who shall put a cross (X) against the candidate for whom he wishes to vote, and if a voter is unable through illiteracy, blindness or other physical infirmity to record his vote, the Chairman shall record the vote on the ballot paper in accordance with the wishes of the voter. The petitioner Rohini Prasad and the respondent No.3 Demam contested the election for the office of Sarpanch. The petitioner secured 11 votees and Deman obtained 5 votes. Accordingly the Chairman declared the petitioner as elected to the office of Sarpanch. 3. The election petition filed by the respondents Nos. The petitioner Rohini Prasad and the respondent No.3 Demam contested the election for the office of Sarpanch. The petitioner secured 11 votees and Deman obtained 5 votes. Accordingly the Chairman declared the petitioner as elected to the office of Sarpanch. 3. The election petition filed by the respondents Nos. 3 to 12, who are all Panchas, was founded on two grounds, namely, first, that the Chairman did not correctly record the votes of four illiterate voters in accordance with their wishes; that these voters expressed their desire to cast their votes for the respondent Deman but the Chairman marked the ballot papers of these four voters in favour of the petitioner; and, secondly, that the election held in accordance with rules 78 and 79 was invalid as those rules were ultra vires section 21 of the Act. 4. The Sub-Divisional Officer negatived both these grounds on which the petitioner's election was attacked. He, however, found that the ballot papers did not bear any serial number and had not been signed by the Block Development Officer and further that the cross-mark on the ballot papers had not been marked clearly so as to give a definite indication of the person for whom the vote was cast. On these grounds the petitioner's election was declared to be void by the Sub-Divisional Officer. 5. Shri Singh, learned counsel appearing for the petitioner, urged that the respondent No.1, the Sub-Divisional Officer, had no jurisdiction whatsoever to set aside the election of the petitioner on a ground not raised by the respondents Nos. 3 to 12 in their election petition; that sub-rule (17) of rule 78 did not require that the ballot papers issued to the Panchas should bear serial numbers or the signature of the Block Development Officer; that the ballot papers handed over to each Panch was strictly in accordance with the form prescribed by sub-rule (17); and that all the ballet papers had been marked very cleary so as to give a clear indication of the person for whom the votes had been cast. 6. In our judgment, all these contentions put forward by learned counsel for the petitioner must be givein effect to. It is clear from the petition filed by the respondents Nos. 6. In our judgment, all these contentions put forward by learned counsel for the petitioner must be givein effect to. It is clear from the petition filed by the respondents Nos. 3 to 12 that the petitioner's election was challenged only on the two grounds stated by learned counsel for the petitioner and adverted to earlier and not on the grounds on which the Sub-Divisional Officer allowed the petition. The Sub-Divisional Officer was not justified in examining the validity of the election on a ground which was never urged by the respondents Nos. 3 to 12. This is clear from rules 5 and 11(2) of the Madhya Pradesh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1962. Rule 5 prescribes that an elect in petition shall contain a concise statement of all material facts on which the petitioner relies and set forth with sufficient particulars the grounds on which the election is called in question. This rule itself shows that an Election cannot be declared to be void on a ground not stated in the election petition. The grounds on which the Sub-Divisional Officer declared the petitioner's election void clearly involved discovery and inspection of the ballot papers. The Sub-Divisional Officer had no doubt under rule, 11(2) of the aforesaid Rules the power to make a direction with regard to this discovery and inspection. But he could not exercise this power unless; there was in the election petition a prayer for discovery and inspection of ballot papers and a concise statement of the material facts and the ground challenging the election on which the prayer for discovery and inspection was based. This is clear from the observations of the Supreme Court in Jagjit Singh Vs. Kartar Singh, AIR 1966 SC 773 at p. 783. In Jagjit Singh's Case (Supra) the Supreme Court nodoubt considered the provisions of the Representation of the People Act, 1951; but rule 5 of the Madhya Pradesh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1962, is analogous to section 83 (1) (a) of the Representation of the People Act, 1951. So also rule 11 (2) is similar to section 92 of that Act. So also rule 11 (2) is similar to section 92 of that Act. The Sub-Divisional Officer was, therefore, not justified in inspecting the ballot papers and allowing the election petition on the ground that the ballot papers did no bear serial numbers and the signature of the Block Development Officer and proper markings. In so doing, the Sub-Divisional Officer clearly violated the provisions of rules 5 and 11 (2) of the M. P. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1962. 7. Quite apart from this, the Sub-Divisional Officer went altogether wrong in thinking that the ballot papers were required to be serially numbered and signed by the Block Development Officer and that they did not bear distinct cross marks so at to give a definite indication of the person for whom the vote on the ballot paper was cast. Sub-rule (17) of rule 78 of the M. P. Gram Panchayat Election and Co-option Rules, 1963, says that the Chairman shall cause the ballot paper to be prepared in the following form :- Ballot Paper ………......................... Gram Panchayate Names of candidates for co-option 1. 2. 3. 4. etc. Seal of the Signature of the Chairman of the Gram Panchayat. meeting." This rule nowhere lays down that the ballot papers should be searially numbered or that they should be signed by the Block Development Officer. The signature that is necessary on the ballot paper is of the person presiding at the meeting of the Gram Panchayat held for the election of the Sarpanch and Up-Sarpanch Here, the person nominated by the Collector as the Chairman of the meeting was the respondent No. 2 Shyam Sunder and not any Blok Development Officer. We have seen the ballot papers on record and all of them are in strict confirmity with the form prescribed by sub-rule (17) and they fulful all the requirements of that sub-rule. The cross-marks on those ballot papers have been placed in such a manner as to leave no doubt whatsoever as regards the person for whom the votes on the ballot papers were cast. It may also be noted that the Sub-Divisional Officer did not at all decide which and how many of the ballot papers had been vaguely marked and could not, therefore, be taken into account. It may also be noted that the Sub-Divisional Officer did not at all decide which and how many of the ballot papers had been vaguely marked and could not, therefore, be taken into account. In our opinion, the Sub-Divisional Officer set aside the petitioner's election on altogether untenable grounds-grounds which he was not entitled to examine when the respondents Nos. 3 to 12 had not raised them in their election petition. 8. Shri Verma, learned counsel appearing for the respondents No.3 to 12, submitted that the Sub-Divisional Officer had not given a categorical finding that the respondent No. 2 who presided at the meeting, correctly recorded the votes of the illiterate voters according to their wishes and had only said that even if the illiterate voters at one stage expressed their desire to vote in a particular manner, there was always the possibility of their changing their mind at the time of actual voting. In regard to this contention, it is sufficient to say that assuming that the respondents Nos. 3 to 12 could in an election petition question the correctness of the marking made by the Chairman on a ballot paper according to the wishes of an illiterate voter the onus lay on the said respondents to establish clearly that the Chairman marked the ballot papers of the illiterate voters in disregard of their wishes. If, on the material placed before the Sub-Divisional Officer by the election petitioners the Sub-Divisional Officer could not come to a definite conclusion on the point whether the ballot papers of illiterate voters were or were not marked by the Chairman according to their wishes, that does not mean that the respondents challenging the election have succeeded in proving the fact that the ballot papers were marked by the Chairman ignoring the wishes of the illiterate voters. 9. Learned counsel for the respondents seemed to disclaim the grounds on which the Sub-Divisional Officer allowed the election petition and contended that the real ground on which the election of the petitioner was held to be void by the Sub-Divisional Officer was that the ballot papers on which the votes had been recorded could be substituted by other ballot papers with different marking when the ballot papers had not been serially numbered. There is no substance in this contention. There is no substance in this contention. An election can no doubt be declared to be void where it is proved that the ballot papers with particular markings actually handed over to the Chairman were in the process of election, substituted by others bearing different markings. It cannot be set aside on a mere speculative possibility under sub-rule (17) of rule 78 of a ballot paper being easily substituted. Now here in the election petition is there even a suggestion that the ballot papers handed over by some of the Panchas to the Chairman were actually substituted by others and the substituted ballot papers were counted. No material to that effected was even placed during the trial of the election petition. Indeed, in the face of sub-rules (18), (19), (20), (24) and (25) it is difficulty to understand how and when the Chairman of the meeting can have an opportunity of substituting any ballot paper by an other, whether before or after counting them. It is not the case of the aforesaid respondents that the Chairman failed to comply with rub-rules (19) and (25). It is not necessary to deal with the matter any further as the Sub-Divisional Officer has not found that any ballot paper handed over by a Panch to the Chairman was substituted by another. 10. For the foregoing reasons, this petition is allowed. The decision dated 19th January 1966 of the respondent No.1 the Sub-Divisional Officer Maihar, setting aside the petitioner's election as Sarpanch, is quashed. It is needless to add that the quashing of the decision of the Sub-Divisional Officer has the effect of the dismissal of the respondents' election petition. The petitioner's election as Sarpanch, therefore stands, the petitioner shall have costs of this application from the respondents Nos. 3 to 12. Counsel's fee is fixed at Rs. 150-. The outstanding amount of the security deposit shall be refunded to the petitioner.