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2001 DIGILAW 331 (MP)

Ranjora Ahirwar v. State of M. P.

2001-04-12

DIPAK MISRA

body2001
ORDER 1. Both these writ petitions being interlinked and interconnected, were heard analogously and are disposed of by this common order. For better appreciation of the factual matrix, the facts in both the writ petitions are separately adumbrated. 2. Ranjora, the petitioner in WP No. 6280/2000, has prayed for a writ of certiorari for quashment of the impugned order dated 24.9.2000 passed by the respondent No.3 vide Annexure P-3, and further to issue a writ in the nature of mandamus commanding the said respondents for holding afresh election for the post of Sarpanch, Gram Panchayat Gudanwara, District Tikamgarh, and to declare the election of respondent No.5 as null and void. 3. The facts as have been undraped are that the petitioner and respondent No.5 were candidates for election of Sarpanch, Gram Panchayat Gudanwara, which was held on 28.1.2000. The respondent No.5 was elected. The petitioner instituted an election proceeding before the competent authority under section 122 of the M.P. Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as 'the Act'), on the ground that his name was mentioned in the ballot paper as Ranjora s/o Shri Bhagola Rai while he was Ranjora Ahirwar s/o Shri Bhagola Ahirwar and by such mention in the ballot paper, the result of the election has been materially affected. The respondents No.4 and 5, Returning Officer and the elected candidate; filed their reply contending, inter alia, that after due scrutiny, the symbols were allotted. The respondent No.3 framed five issues. The issues 3 and 5 dealt with whether the caste of the petitioner was wrongly printed in the ballot paper and whether due to the printing mistake of the name and caste of the petitioner in the ballot paper, the election of respondent No. 5 has been substantially affected. It has been further set forth that an interim order passed by respondent No.3 was assailed before this Court in WP No. 3041/2000 and this Court disposed of the writ petition by directing the respondent No.3 to decide the election petition within two months after framing some additional issues. Thereafter the respondent No.3 framed some additional issues and after affording opportunity to the parties to lead evidence, he decided the matter by the impugned order. Thereafter the respondent No.3 framed some additional issues and after affording opportunity to the parties to lead evidence, he decided the matter by the impugned order. It is urged in the petition that the specified officer has given findings to the effect that in the ballot paper, petitioner's caste was erroneously printed that due to the erroneous printing, the petitioner has secured less number of votes and indirectly the respondent No.5 had been benefited; that there has been violation of rule 51 of M.P. Panchayal Nirvachan Niyam, 1995; that the petitioner had lost the election by a margin of one vote; and that the election to the post of Sarpanch was not held in accordance with the rules. The specified officer further proceeded to hold that the election held for the post of Sarpanch was illegal and ineffective but if re-election is held, the State exchequer would be unnecessarily burdened. Thereafter he directed the Tahsildar, Tikamgarh, to recount the votes in presence of the agents of the parties. 4. A return has been filed by the respondent No. 5 contending, inter alia, that the election petition preferred before the specified officer was not maintainable as the same was not preferred in accordance with rule 3(2) of the M.P. Panchayat (Election Petitions, Corrupt Practices and Disqualification of Membership) Rules, 1995 (hereinafter referred to as 'the 1995 Rules'), as the application was not accompanied with copies and the copy which was supplied to the said respondent was not attested by him. It has been put forth that such an objection was taken before the specified officer but he erroneously answered the issue No.6 in favour of the petitioner. Reference has been made to the earlier order of this Court wherein a direction was given to frame an issue with regard to maintainability of the election petition and to permit the parties to adduce evidence on the said question. Framing of issue with regard to recount has also been questioned by the said respondent. It has been further pleaded that the incorrect mentioning of the surname/caste did not materially affect the election result, as the name of the father and the election symbol allotted to the petitioner was correctly mentioned in the ballot paper and the electorate was well aware of the contest between the petitioner and the answering respondent. It has been further pleaded that the incorrect mentioning of the surname/caste did not materially affect the election result, as the name of the father and the election symbol allotted to the petitioner was correctly mentioned in the ballot paper and the electorate was well aware of the contest between the petitioner and the answering respondent. It has also been set forth that after recounting no error has been found in the same and, therefore, re-election is unwarranted. It has been reiterated that the result of the election has not been materially affected by non-mention of the surname, and hence, the order passed by the specified officer not to hold re-election, does not wan-ant interference. 5. Now I shall proceed to state the facts in WP No. 1628/2001. It is pleaded in the petition that the voters had cast their votes on the basis of symbol in favour of the contesting candidates as per their choice and the election was not adversely affected due to erroneous printing of name in the ballot paper. It has also been stated that there are only two candidates, the present petitioner and the respondent No. 5 and hence, there was no question of any confusion. The respondent No.5 had not raised any complaint for correction of the ballot papers. The findings recorded by the Election Tribunal have been assailed on the ground that they have been done on erroneous appreciation of facts and law. The petitioner has urged that election petition was not maintainable inasmuch as there has been violation of sub-rule (2) of rule 3 of the 1995 Rules. The observation by the specified officer that the petitioner had not raised any objection in regard to the maintainability of the election petition has also been seriously criticised in the petition. Reference has been made to rule 21 of the Rules to show that the election has not been materially affected and, therefore, could not have been declared void by the prescribed authority. A reference has also been made to rule 61 of M.P. Panchayat Nirvachan Niyam, 1995 which stipulates that voter is required to cast his vote on the symbol given on the ballot papers and as the correct symbol has been given, the wrong printing of the surname is of no consequence. 6. In WP No. 628012000, I have heard Mr. A.K. Chourasia, learned counsel for the petitioner, Mr. 6. In WP No. 628012000, I have heard Mr. A.K. Chourasia, learned counsel for the petitioner, Mr. Ashok Agarwal, learned PL for respondents No. 1 to 4, and Mr. Manindra Bhatti, learned counsel for respondent No.5. In WP No. 1628/2001, I have heard Mr. Manindra Bhatti, learned counsel for the petitioner, Mr. Ashok Agarwal, learned PL for respondents No. 1 to 4, and Mr. A.K. Chourasia, learned counsel for respondent No.5. 7. It is submitted by Mr. Chourasia, learned counsel for the petitioner, that the specified officer has rightly rejected the objection of respondent No.5, Kishora, with regard to the maintainability of the election petition. It is his further submission that by wrong printing in the ballot paper, the election of the petitioner has been materially affected and the same is apparent as he had lost by one vote. 8. Mr. Manindra Bhatti, learned counsel for the returned candidate Kishora, per contra, has canvassed that the specified officer's finding with regard to maintainability of the election petition is not sound inasmuch as mandatory provisions as envisaged under 1995 Rules were not complied with. The learned counsel has further urged that by non-mention of surname of the petitioner, the election result was not materially affected, and therefore, the direction given by the specified officer for not holding of re-election is justified in law. Learned counsel has also submitted that the ground taken in the election petition is not a specified ground to set aside the election, and hence, the whole action by the election petitioner is much ado about nothing. 9. To appreciate the rival submissions raised at the Bar, it is apposite to refer to rule 3 of 1995 Rules. It reads as under: "3. Presentation of election petition -(1) An election petition shall be presented to the specified officer during the office hours by the person making the petition, or by a person authorised in writing in this behalf by the person making the petition. (2) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every copy shall be attested by the petitioner under his own signature to be a true copy of the petition." Mr. (2) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every copy shall be attested by the petitioner under his own signature to be a true copy of the petition." Mr. Bhatti has laid emphasis on sub-rule (2) to highlight that the copies which accompanied the election petition were not attested by the petitioner under his own signature as a true copy of the petition. It is put forth by him that the copy which was served on the elected candidate was not attested as to be the true copy of the petition filed by the election petitioner. In this connection, I have carefully perused the finding recorded by the specified officer in relation to issue No.6. The specified officer did not accept the contention of the objector to consider the aforesaid issue as a preliminary issue and dealt with the same after evidence was adduced in respect of all the issues. On scrutiny of the oral evidence of the witnesses and the documentary evidence brought on record, the specified officer has arrived at the conclusion that the photostat copy of the election petition was filed by the returned candidate. Photostat copy filed by the returned candidate was not believed by the specified officer. He has also referred to the oral evidence of the objector who has stated that he has no idea what is called the true copy of an election petition. The other witnesses had not been able to substantiate the objection raised. On consideration of the finding of the said issue, it is quite vivid that the elected candidate had not been able to prove before the Election Tribunal that he had received a copy of the election petition which was not the true copy. Reasonings given by the specified officer are germane to the issue and quite cogent, and hence, the conclusion arrived at by him docs not warrant interference. Therefore, the colossal complaint raised by Mr. Bhatti that the election petition was liable to be thrown at the very threshold has collapsed like a house of cards. 10. It is next contended by Mr. Bhatti that rule 21 of the 1995 Rules deals with grounds for declaring election to be void, and erroneous printing of the ballot papers is not one of the grounds enumerated therein. Bhatti that the election petition was liable to be thrown at the very threshold has collapsed like a house of cards. 10. It is next contended by Mr. Bhatti that rule 21 of the 1995 Rules deals with grounds for declaring election to be void, and erroneous printing of the ballot papers is not one of the grounds enumerated therein. To appreciate the aforesaid submission of the learned counsel, it is apposite to reproduce the sub-rule (1) of rule 21 which reads as under: "(1) Subject to the provisions of sub-rule (2), if the specified officer is of opinion – (a) that on the date of his election, the returned candidate was not qualified or was disqualified to be chosen to fill the seat under the Act; or (b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c) that any nomination paper has been improperly rejected; or (d) that the result of the election in so far' as it concerns returned candidate has been materially affected – (i) by the improper acceptance of any nomination; or (ii) by a corrupt practice having been committed in the interest of the returned candidate by a person acting with the consent of the candidate or his agent; or (iii) by the improper acceptance, refusal or rejection of any vote or the reception of any vote which is void; or (iv) by any non-compliance with the provisions of the Act or of any rules or orders made thereunder; the specified officer shall declare the election of the returned candidate to be void." On a proper reading of the aforesaid rule, it becomes plain as noon day that if there is non-compliance with the provisions of the Act or any of the rules or orders made thereunder, the specified officer has authority to declare the election of the returned candidate as void. In this context, I may profitably refer to relevant parts of rules 38, 40 and 51 of the Nirvachan Niyam, 1995. They read as under: "38. In this context, I may profitably refer to relevant parts of rules 38, 40 and 51 of the Nirvachan Niyam, 1995. They read as under: "38. Preparation of list of contesting candidates -- (1) Immediately after the expiry of the period within which candidature may be withdrawn under rule 28, the Returning Officer shall prepare a list of contesting candidates, that is to say, candidates whose nomination papers have been finally accepted and who have not withdrawn their candidature within the said period, in Form 8-A, 8-B, 8-C and 8-D for the office of Panch, Sarpanch, Member of Janpad Panchayat or Zila Panchayat as the case may be. (2) The said list shall, subject to the provisions of sub-rule (3), contain the names in alphabetical order and the addresses of the contesting candidates as given in the nomination papers and shall be prepared in Hindi in the Devnagri script. (3) The alphabetical order referred to in sub-rule (2) shall be determined with reference to the names and or surnames of the candidates in such manner as may be prescribed by the Commission. xxx xxx xxx xxx 40 Publication of list of contesting candidates -- The Returning Officer shall cause a copy of the list of contesting candidates prepared under rule 38, to be published immediately after allotment of symbols to candidates, by affixture on the notice board in his office and shall also supply a copy thereof to each contesting candidate or his election agent. xxx xxx xxx xxx 51. Form of ballot paper -- (1) Every ballot paper shall have a counterfoil attached thereto and shall be in such form and have such particulars as may be determined by the Commission. (2) The ballot paper shall contain the names of candidates in Hindi in the Devnagri script arranged in the same order in which they appear in the list of contesting candidates, against their election symbols." 11. As envisaged in the aforesaid rules, the list of contesting candidates has to be prepared in Form 8-B and the names and addresses of the candidates are to be mentioned. The specified officer, while answering issue No.2, has held that the name of the election petitioner was printed as Ranjora son of Bhagola Rai whereas he had filled up the nomination form as Ranjora son of Bhagola Ahirwar. The specified officer, while answering issue No.2, has held that the name of the election petitioner was printed as Ranjora son of Bhagola Rai whereas he had filled up the nomination form as Ranjora son of Bhagola Ahirwar. He has discussed the oral evidence and come to hold that there is no Rai caste in Gudanwara Panchayat. He has also opined that there has been grave error in the printing of the ballot papers. The specified officer, while answering issue No.3, has come to hold that Rai caste does not come under the Scheduled Caste. In issue No.5, while dealing with the aspect whether the election has been affected, the specified officer has opined that there has been partial effect on the election because of erroneous description of the name of petitioner. He has also opined that the voting pattern has been affected and the elected candidate has obtained an indirect advantage. It cannot be lost sight of the fact that the election petitioner lost the election by margin of one vote. When his name was erroneously printed in the ballot paper and the margin is that of one vote, there remains no scintilla of doubt that the election of the election petitioner was materially affected. 12. It is next contended by the learned counsel for the elected candidate that the Tribunal, on recounting, has found that the counting done by the returning officer was just and correct. Mr. Chourasia, learned counsel for the petitioner in WP No. 6280/2000, has contended that he had no grievance with regard to recounting but to the pattern of voting. Learned counsel has emphasized that when the specified officer had come to hold that there has been grave error in the printing of ballot papers and the name of the petitioner was not correctly described and the voting pattern was affected, he should have directed for re-election. I find substantial force in the aforesaid submission of Mr. Chourasia. The specified officer has not directed re-election solely on the ground that it will cause financial burden to the exchequer. That is not the correct approach by the Tribunal. Law must prevail in all circumstances unless it is impossible to be performed. It is not the reason of the specified officer that holding of the re-election is impossible. That being not so, he, in all fairness, should have directed for holding of re-election. 13. That is not the correct approach by the Tribunal. Law must prevail in all circumstances unless it is impossible to be performed. It is not the reason of the specified officer that holding of the re-election is impossible. That being not so, he, in all fairness, should have directed for holding of re-election. 13. In view of my preceding analysis the Writ Petition No. 6280/2000 is allowed, direction for not holding the re-election is quashed and it is directed that the re-election for the post of Sarpanch of Gram Panchayat, Gudanwara, shall be held after following the due procedure under the Act and the Rules by the competent authority within a period of three months from the date of receipt of this order. The post in question shall be treated to be vacant. In view of the aforesaid direction, the Writ Petition no. 1628/2001 has to fail and the same is hereby dismissed without any order as to costs.