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2001 DIGILAW 1092 (PAT)

Ram Ratan Yadav v. State Election Commission

2001-12-06

R.S.GARG

body2001
Judgment R.S.Garg, J. 1. The petitioner, contender to the office of the Up-Mukhiya of Gram Panchayat of Budhwaran, being aggrieved by the order dated 13-6-2001 recorded in present of the rival candidate, the Mukhiya and the Returning Officer, has come to this Court inter alia pleading that in view of the declaration of result relating to the votes secured by the candidate, condemned Returning Officer conducting election no authority to stay the result and was obliged to declare the result then and there. It is further contended that during pendency of this petitioner, contrary to the provisions of law the Returning Officer allowed the Mukhiya to cast his vote, creating a situation of equality and further allowed the Mukhiya to cast his casting vote in favour of the other respondent namely, Mumtaz Khan. 2. Placing reliance upon sec. 15(3) of the Bihar Panchayat Raj Act, 1993 learned Counsel for the petitioner submits that immediately after elections, every Gram Panchayat in its first meeting shall elect a Up-Mukhiya and thereafter, the election to the office of Up-Mukhiya would be held. According to him the Mukhiya of Gram Panchayat shall be a voter in the election of Up-Mukhiya and in case of equality of voters he has a right to cast the casting vote. He submits that from proceeding dated 13-6-2001 it does not appear that the Mukhiya, Pankaj Kumar, was restrained from exercising his right to case the vote, therefore, the returning officer was unjustified in not delaring the result and entertaining the objections raised by him. 3. On the other hand, learned Counsel for the respondent No. 9, Mumtaz Khan contended that if the proceeding dated 13-6-2001 and Annexure-C annexed to the show cause are read in juxta position, it would clearly appear that even before counting of the votes Mukhiya was raising an objection that he was entitled to exercise his right of franchise and immediately after ballot box was opened the Mukhiya had again raised his objection. He submits that as Mukhiya was not allowed to cast his vote in the election contrary to sec. 15(3) of the Act the Mukhiya was justified in raising objection and the authority was justified in entertaining the same. 4. For proper appreciation of the rival contentions, it is necessary to look into sec. 15(3) of the Act. sec. He submits that as Mukhiya was not allowed to cast his vote in the election contrary to sec. 15(3) of the Act the Mukhiya was justified in raising objection and the authority was justified in entertaining the same. 4. For proper appreciation of the rival contentions, it is necessary to look into sec. 15(3) of the Act. sec. 15(3) of the Act reads as under: (3) (i) After election every Gram Panchayat, in its first meeting shall elect one Up-Mukhiya from amongst the members elected under the provisions of Clause (b) of Sub-sec. (1) of sec. 12 of the Act, by a majority of votes. (ii) The Mukhiya of the Gram Panchayat shall be a voter in the election of Up-Mukhiya and in case of equality of voter he shall exercise a casting vote. According to Clause (ii) of Sub-sec. (3) of sec. 15 of the Act, the Mukhiya of the Gram Panchayat shall be a voter in election of Up-Mukhiya and in case of equality of votes he has a authority to exercise his casting vote. On face of this provision, it cannot be contended that the Mukhiya would not be entitled to cast his vote in an election to the office of Up-Mukhiya. 5 From the proceedings dated 13-6-2001, it appears that after the name was proposed the other members constituting the Gram Panchayat cast their votes. Though the proceeding dated 13-6-2001 did not positively record that before counting of the said votes, the Mukhiya had raised any objection but from the report of the Black Development Officer as contained in Annexure-C, annexed to the show cause, it would clearly appear that immediately after the voters had cast their votes the Mukhiya raised an objection that in accordance with Section 15(3) Clause (ii) of the Act, he was entitled to cast his vote and in case equality was also entitled to cast his casting vote. 6. Learned Counsel for the petitioner submits that neither from the proceeding dated 13-6-2001 nor from Annexure-E dated 15-6-2001, it appears that the said Mukhiya was prevented or restrained by anybody from casting his first vote. Learned Counsel submits that unless it was so recorded either by the Returning Officer or by some-body else that Returning Officer prevented the Mukhiya from casting his first vote, it should not be held that he was so prevented. 7. Learned Counsel submits that unless it was so recorded either by the Returning Officer or by some-body else that Returning Officer prevented the Mukhiya from casting his first vote, it should not be held that he was so prevented. 7. In the opinion of this Court, the argument raised by the learned Counsel for the petitioner runs contrary to juxtapose reading of Annexure-E and proceedings dated 13-6-2001. Immediately after the counting started, certain proceedings were recorded. In the proceeding, it was recorded that the Mukhiya had raised an objection that he had one vote in the election to the office of Up-Mukhiya and in case of equality, he was entitled to cast his casting his vote. 8. From the report dated 15-6-2001 submitted by the Block Development Officer, it would clearly appear that after the other members constituting Panchayat had cast their votes, the Mukhiya had also raised objection that he was entitled to vote. Bare perusal of the proceedings and the letter would show that, in fact, Mukhiya was not allowed to cast first vote therefore, he was raising objection. If the returning officer or anybody else prevented the Mukhiya from casting his first vote then obviously it was illegal and contrary to the provisions of the Bihar Panchayat Raj Act, 1993 and was violating Clause (ii) of Sub-sec. (2) of sec. 15 of the Act. When the law permits something to be done in a particular manner then it is to be done in such manner alone and not otherwise. 9. In the present case, if Mukhiya was not allowed to vote, it was leading to illegality and if later on he was allowed to cast vote bringing a situation of equality then obviously under the provisions of Clause (ii) of sec. 15(3) of the Act, he was entitled to cast his casting vote. 10. From the record it appears that after receiving a complaint letter of the Block Development Officer, respondent No. 4 gave his opinion and clearly informed the returning officer that the Mukhiya had one vote in case of election to the office of Up-Mukhiya. 11. In the opinion of this Court, juxtapose reading of the proceedings dated 13-6-2001 would make it clear that the Mukhiya was not allowed to vote and if latter on he was allowed to vote, the authority was not committing any illegality. 11. In the opinion of this Court, juxtapose reading of the proceedings dated 13-6-2001 would make it clear that the Mukhiya was not allowed to vote and if latter on he was allowed to vote, the authority was not committing any illegality. Undisputedly the Mukhiya had cast his vote in favour of respondent No. 9 bringing a situation of equality, therefore, the Mukhiya was entitled to exercise the right of coming the additional vote. When he had cast the vote in favour of the respondent No. 9, obviously the respondent No. 9 Recured 8 votes and defeated the petitioner by margins of 1. 12. The proceedings recorded by the authority and the final result, in the opinion of this Court cannot be faulted with. 13. The petitioner deserves to be dismissed and is accordingly dismissed.