Amar Nath vs Subhash Chander and Others

S.S. Sudhalkar, J.—This writ petition has been filed to quash the order dated 17.4.1995 passed by the Sub Judge, Ist Class, Rohtak whereby he set aside the election of the petitioner to the office of Panch, Gram Panchayat, Sampel.

In the election held on 15.12.1994 for electing Sarpanch and Panches of Gram Panchayat Sampel, Tehsil and District Rohtak, the petitioner was declared elected as Panch from Ward No. 11 because he was shown to have secured 107 votes as against 104 votes polled by respondent No. l. The respondent No. 1 filed an election petition on various grounds set out therein. The petitioner contested the election petition. After recording the evidence of the parties, the learned Sub Judge held that votes cast by Bhim Singh and 15 other persons in village Sampel were invalid because they could not have cast their votes in two villages, namely, Ritoli and Sampel. On the basis of this find ags, the learned Sub Judge directed that the election record be brought to the lower Court on 25.4.1995 and the result be declared after recounting the votes.

We have heard the learned counsel for the petitioner and Shri Raina, Deputy Advocate General. Shri Kapoor, learned counsel for the petitioner, argued that no election petition could be maintained before the learned Sub Judge except on the grounds enumerated in Section 176 of 1994 Act and as the alleged illegality of votes is not one of the grounds enumerated in Section 176 for filing of an election petition the learned Sub Judge has no jurisdiction to entertain the petition and to pass the impugned order. Shri Kapoor placed reliance on the decisions of the Supreme Court in Nanhoo Mal and Others Vs. Hira Mal and Others, ; Jyoti Basu and Others Vs. Debi Ghosal and Others, and Rama Kant Pandey Vs. Union of India, . In substance the plea of the learned counsel is that Section 176 of the Act does not provide for setting aside the election on the ground of wrongful ''reception'' or ''rejection'' of the votes and, therefore, the learned Sub Judge did not have jurisdiction to examine the legality, correctness or otherwise of the votes polled during the election.

The learned Deputy Advocate General has defended the order passed by the learned Sub Judge and has placed reliance on the decisions of this Court in Smt. Guddi Devi Vs. The State Election Commissioner, Haryana and others, and Chhota Singh Vs. Pepsu Road Transport Corporation, .

Sub-section (4)(a) of Section 176 of 1994 Act provides for setting aside the election on the ground of corrupt practice committed by the elected candidate. Sub-section (4)(b) of Section 176 deals with cases to which Sub-section (4)(a) does not apply. For the purpose of better appreciation, it will be useful to reproduce Section 176(4)(b) of 1994 Act. The same reads as under :-

"Section 176(4)(b). "If, in any case to which clause (a) does not apply, the validity of an election is in dispute between two or more candidates, the Court shall after a scrutiny and computation of the votes recorded in favour of each candidate declare the candidate who is found to have the largest number of valid votes in his favour, to have been duly elected."

On a plain reading of the above quoted provisions, it becomes clear that the authority enjoined with the power to adjudicate an election petition is under a duty to consider the valid votes cast during the election. The Court can scrutinise and compute votes which obviously means valid votes recorded in favour of each candidate and declare that candidate as duly elected who has secured largest number of valid votes. Therefore, the exercise undertaken by the learned Sub Judge to find out how many valid votes were polled by either of the candidates cannot be termed as without jurisdiction.

In the impugned order, the learned Sub Judge has recorded that in all 215 votes were polled out of a total 239 in Ward No. 11 of which the election petitioner (respondent No.l herein) secured 104 votes and the writ petitioner secured 107 votes and 4 votes were cancelled. The learned Sub Judge analysed the evidence produced by the parties and recorded a firm conclusion that Bhim Singh and others had cast their votes in two villages and under the existing provisions of law a person cannot get himself enrolled as voter in two areas and therefore, they had no locus standi to cast vote in the elections to village Gram Panchayat Sampel. The learned Sub Judge has observed that these persons were asked by the B.D.O. Kalamnaur not to cast their votes issued by the B.D.O. as they had votes in two villages and that they were asked to give their explanation within 24 hours. He also observed that Parkash s/o Kanshi, Bhim Singh s/o Ram Singh, Ram Niwas and others had given their reply (Ex. Dl to D-3 in the election petition) that they had no concern with the other villages except village Sampel and they wanted that their votes in other villages be deleted. This showed that they have already cast their votes in village Ritoli and Kharkara as well as in village Sampel. He held that even though proper steps were taken by the petitioner and the BDO Kalanaur about these voters but Bhim Singh and 15 others had cast their votes in the impugned election.

In Smt. Guddi Devi v. State Election Commissioner (supra), this Court has held as under:-

"It is true that under Sub-section (4) of Section 176 of the Act it is provided that the election shall be set aside for committing corrupt practice within the meaning of Sub-section (5). However, we are of the firm view that the provision of Sub-section (4)(a) for setting aside the election of a candidate on the basis of corrupt practice within the meaning of Sub-section (5) cannot in any manner be interpreted to mean that only ground for setting aside the election would be On the basis of corrupt practice and not on the basis of illegal rejection or acceptance of nomination papers of a candidate or illegalities or irregularities committed in preparation of electoral rolls and all such matters connected with the conduct of the election process right from its very beginning upto its final culmination with the declaration of the election results. Mere fact that neither under the Act nor under the Rules framed by the State Legislature any remedy has been provided against illegal rejection or illegal acceptance of nomination paper or illegality or irregularity, committed in preparation of the electoral rolls before the culmination of the election process in our view would not in any manner debar the affected party from taking up all such objections in the election petition while challenging the validity of the election at a stage subsequent to a declaration of the election result."

The same view has been reiterated in Megh Raj Sharma''s case (supra).

In the face of these two direct decisions, we dot not find any reasons to interfere with the impugned order. The decisions relied upon by the learned counsel for the petitioner do not have any bearing on the interpretation of Section 176 of 1994 Act.

Learned counsel for the petitioner has not been able to show that the findings recorded by the learned Sub Judge are perverse. We, therefore, do not find any reason to interfere with those findings.

The net result of the above discussion is that the writ petition deserves to be dismissed and it is hereby dismissed.