Labh Singh vs Sub Divisional Magistrate (Officer) Fazilka

I.S. Tiwana, J. (Oral)

The election of the petitioner as Sarpanch of Gram Panchayat PireKeUttar, Tehsil and District Ferozepur, has consistently been set aside by the Prescribed Authority and the Appellate Authority under the Punjab Gram Panchayat Act, 1952 (for short, the Act) on the ground that the result of the election stood materially affected as the votes of five dead persons had been cast in favour of the petitioner. It is the undisputed position that the petitioner had been declared elected by one vote visa vis Tehal Singh, respondent, who was petitioner before the Prescribed Authority.

Having heard the learned counsel for the parties in the light of the impugned orders, I find that although it is established that some persons did cast their votes in place of the dead persons, yet there is no material on record to support the conclusion of the subordinate authorities that the said votes had been cast in favour of the petitioner. All that has been said in these orders is that since the petitioner had identified these persons, therefore, it has to be presumed that they had cast their votes in favour of the petitioner. To my mind, the authorities below have completely misdirected themselves in adopting this approach. Presumption cannot take the place of proof. Further, the relevant provision of law under which the election of the petitioner has been set aside is contained in clause (d) of Section 13O of the Act which reads as under :

``Section 13O Grounds for setting aside election. (1) .........(d) that the result of the election in so far as it concerns the elected person, has been materially affected........(ii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void;........''''

It is crystal clear from the reading of this provision that unless the authorities concerned could record a finding that the improper reception of the void votes, has materially affected the election of the petitioner, the same could not be set aside. Mr. Chopra, learned counsel for respondent No. 2, however, contends that since in the election in question the ballot papers were not numbered, it could not possibly be found out as to for whom the persons who had voted for the dead persons had cast their votes. According to the learned counsel since it was impossible for him to establish this fact the authorities below were justified in raising the presumption on which they have depended. I, however, find no merit in this submission. Firstly, it is difficult to accepted that the votes in question were cast through ballot paper other than the one envisaged by Rule 21 of the Gram Panchayat Election Rules which lays down that the ballot paper supplied to a voter shall bear a serial number and such official mark, if any, as may be specified in Rule 16. Secondly, even if it is accepted that no ballot papers as prescribed by the Rules were supplied to these voters still this respondent (petitioner before the subordinate authorities) cannot take advantage of this lapse of the part of the authorities concerned. It is elementary that before a person can be dislodged from his elected office, the ground for his disqualification or removal has to be established beyond any reasonable doubt. In any case, the benefit of such a doubt cannot be taken by the election petitioner.

For the reasons recorded above, I set aside the impugned orders and uphold the election of the petitioner but with no order as to costs.