Mamta Devi @APPELLANT@Hash Anju

By way of this writ petition, the petitioner Mamta Devi being the losing candidate in the election held for the post of Sarpanch, Gram Panchayat

Bhagwanpura, has approached this Court for assailing the judgment dated 04.08.2017 passed by the learned Civil Judge (Sr. Division), Parbatsar,

District Nagaur dismissing the Election Petition No.44/2015 filed by the petitioner for challenging the election of respondent No.1 Smt. Anju on the

post of Sarpanch.

The election petition was filed by the petitioner on the ground that gross irregularities were manifested in the procedure of counting votes undertaken

by the Returning Officer. The Returning Officer wrongly rejected large number of valid votes of the petitioner and consequently, the respondent Smt.

Anju was declared elected by a slender margin. The following reliefs were sought by the petitioner in her election petition:

“1- bLrnqvk cgd izkFkhZ;k fo:) vizkFkhZ la[;k 1 bl vkâ€k; dh tkjh dh tkos fd izkFkhZ;k dks okLro esa 660 er feys o vizkFkhZ;k la[;k 1 dks 555 er

feys rFkk vizkFkhZ la[;k 6 us vizkFkhZ la[;k 1 ls feykoV dj izkFkhZ;k ds 155 oS/k erksa dks [kkfjt gksuk crk dj vizkFkhZ;k la[;k 1 dks fot; ?

kksf’kr fd;k] tcfd gYds fuâ€kku ds er i= vizkFkhZ la[;k 1 ls 5 ds er i=ksa esa Hkh 'kkfey Fks] ftudks vizkFkhZ la[;k 6 us lgh ekudj izi= 7 esa

nâ€kkZ;k gS] ftlls ljiap in ds fy, iM+s lHkh erksa dh iquZx.kuk djkbZ tkus dk vknsâ€k Qjek;k tk;sA 2- vizkFkhZ;k la[;k 1 dk fuokZpu voS/k ?kksf""kr

fd;k tkdj iqu% er x.kuk ds ckn izkFkhZ;k ds T;knk oS/k er gksus ls izkFkhZ;k dks fot; ?kksf""kr fd;k tk;sA

4- izkFkhZ;k dh pquko ;kfpdk Lohdkj dh tkdj iqu% erx.kuk djokbZ tkdj vizkFkhZ;k la[;k 1 dk pquko voS/k ?kksf""kr fd;k tkdj izkFkhZ;k dks xzke

Hkxokuiqjk dk ljiap ?kksf’kr fd;k tk;sAâ€​

Shri S.M. Parihar, learned counsel representing the petitioner vehemently urged that the Returning Officer did not ensure fair counting of votes and

rather acted in a totally illegal and arbitrary manner. Referring to the statements of the witnesses examined on behalf of the petitioner, he urged that

the Tribunal failed to properly appreciate the evidence and rejected the election petition in an illegal manner and that the judgment is bad on facts as

well as law. He thus implored the Court to re-appreciate the evidence and set aside the impugned judgment as being grossly illegal.

I have given my thoughtful consideration to the submissions advanced by Shri Parihar and have gone through the impugned judgment and the evidence

placed on record.

The most significant evidence led before the Election Tribunal was that of the Returning Officer Shri Mula Ram Jat, who filed an affidavit with a

categoric assertion that the petitioner made some oral complaints while the counting of votes was underway but she did not make any written

complaint whatsoever in this regard to the R.O., the SDM, Nawa or Tehsildar, Nawa who were present during the counting process. The witness

categorically swore in his affidavit that the counting was done in an absolutely fair and transparent manner. The Tribunal, after appreciating the

evidence led before it, concluded that the petitioner’s allegations were totally unfounded. The petitioner never made any written protest

questioning the procedure of counting of votes of the booth Nos.7, 8 and 9 in relation whereto, the entire controversy was raised in the election

petition. At para No.11 of the Judgment, the Tribunal, minutely appreciated and evaluated the statement of the petitioner herself. In her examination-

in-chief, the petitioner stated that she got 660 votes in the election but the Returning Officer, Shri Mula Ram Jat wrongly rejected 153 of her valid

votes and wrongly declared respondent No.1 Anju to be elected. She claimed that 153 votes were having faint traces of the voting seal on her symbol

and that she immediately made a complaint in this regard. But, as per the petitioner, such complaint was not entertained in right perspective and her

valid votes were arbitrarily rejected. She claimed that she also prayed for recounting of the wrongly rejected votes which was arbitrarily rejected

without assigning any reason. In cross-examination, Smt. Mamta admitted that she did not make any protest whatsoever regarding the manner in

which the tables for counting the votes of booth Nos. 7, 8 and 9 were laid out. She did not make any complaint in writing to the SDM. No complaint

was made regarding the formation of the counting committees constituted by the Returning Officer. She further admitted that she did not make any

application in writing regarding the so-called wrongful rejection of her valid votes and to recount the same. Even, no written complaint was made to

the Zonal Magistrate (S.D.M.) who visited the counting booths at about 4 0 ‘Clock’. She also admitted that her father-in-law was a Reader in

the SDM Court, Nawa and all the contestants as well as their agents were present in the counting hall during the counting process. From these

admissions made by the petitioner in her cross-examination, the Tribunal drew a conclusion and rightly so in the opinion of this Court that during the

counting process, the petitioner failed to raise any issue/ objection regarding the so-called irregularities in the manner of counting votes and regarding

the alleged wrongful rejection of her votes as attributed to the Returning Officer by the election petition. Likewise, the petitioner’s agents AW-2

Bannaram and AW-3 Ghanshyam also stated that no written complaint was made either to the Zonal Magistrate or the Returning Officer regarding

the so-called wrongful rejection of votes. After appreciating these facts, the Tribunal considered the import of Rule 49(6) of The Rajasthan

Panchayati Raj (Election) Rules, 1994 which stipulates that any candidate present at the counting place would be entitled to submit a written

application to the Returning Office for recounting of the votes at any point of time. Upon receiving such application, the Returning Officer is vested

with the discretion to either direct recounting or reject such application. The provision is mandatory in nature. The Tribunal also took note of Rule

49(5) of the Rules which stipulates that the Returning Officer, shall provide appropriate opportunity of inspection of the rejected votes to all the

candidates. The petitioner, who herself was present in the counting booth with her agents, did not specify the serial numbers of the votes which were

allegedly rejected wrongly. She did not file any written application for inspection of the rejected votes or for recounting when the counting process

was underway or even thereafter.

As per Rule 80 of the Panchayati Raj Election Rules, the election result can be called in question only by a candidate at such election by filing an

election petition before the District Judge having jurisdiction “within 30 days†from the date on which the result of election is declared. The result

of the election in question

was declared on 20.01.2015 whereas, as observed by the Tribunal, the election petition came to be submitted by the petitioner in the District Court

concerned on 01.03.2016 i.e. after more than 4 months. Rule 80 of The Rajasthan Panchayati Raj (Election) Rules is mandatory in nature and thus,

manifestly the election petition itself was time barred and should not have been entertained.

In view of discussion made herein above, this Court is of the firm opinion that the election petition submitted by the petitioner was liable to be and was

rightly rejected by the learned Tribunal on the ground of being time barred and also as being without substance.

I find that the impugned judgment dated 04.08.2017 passed by the learned Civil Judge (Sr. Division), Parbatsar, District Nagaur does not suffer from

any illegality, irregularity, perversity or error apparent on face of record warranting interference therein in the exercise supervisory writ jurisdiction

conferred upon this court by Article 227 of the Constitution of India.

Hence, the instant writ petition is dismissed summarily.