Parshuram Singh vs S.D.O. Sadar and Another

K.N. Seth, J.—The Petitioner and Respondent No. 2 were candidates at the election for the office of Pradhan of Gaon Sabha Bhaluhi in the district of Ballia. The Petitioner was declared elected having secured 249 votes as against 248 polled by the Respondent. Twenty two votes were declared invalid. In the election petition filed by Respondent No. 2 u/s 12-C of the U.P. Panchayat Raj Act and main grievance raised was that in fact the Petitioner and Respondent No. 2 had both secured equal number of votes but as a result of wrong counting the Petitioner was declared to have secured one vote more than the election Petitioner. The S. D. O. sent for the ballot papers, ballot paper account, the election return and on recounting which was done in the presence of the parties, it was found that the Petitioner and Respondent No. 2 had both secured 248 votes and 22 votes were invalid. The S. D. O. by his order dated 28-11-1974 held the election to be invalid and declared a casual vacancy following the decision of this Court in Raj Mangal Singh v. SDO 1966 ALJ 279. The Petitioner has assailed the correctness of the aforesaid decision.

2, Learned Counsel for the Petitioner contended that on the finding that both the contesting candidates had secured equal number of votes, the Tribunal ought to have drawn lot and decided the petition on that basis and that it was not legal for the SDO to have set aside the election and declare a casual vacancy. The contention appears to be well merited. Rule 21-P of the rules framed under the Act provides for a contingency where both the candidates secured equal number of votes. This rule provides that in such a situation the Nirvachan Adhikari shall decide between these candidates by lot and proceed as if the candidates on whom the lot falls had received an additional vote. In Raj Mangal Singh''s case (supra) a learned single Judge took the view that the power of drawing lot could be exercised by the Nirvachan Adhikari alone and it was not open to the Election Tribunal while hearing an election petition u/s 12-C of the Act to resort to that provision as his jurisdiction was confined to the powers conferred under rule 25 of the Rules. A similar question came up for consideration before a Division Bench of this Court in Mani Ram v. Bhagwat Sarup 1949 AWR 163. In that case the provisions of the U.P. Muncipalities Act and the U.P. Municipal Election Rules were considered. Rule 50 of the U.P. Municipal Election Rules provided for drawing of lot where both the candidates secured equal number of votes. Dealing with the power of the Commissioner hearing an election petition the Bench observed that in a case of an equality of votes coming into existence as a result of the correction made by the Commissioner in rejecting votes improperly admitted or admitting votes improperly rejected he can direct that a lot be drawn in the presence of the District Magistrate in accordance with rule 50. Dealing with the ambit of power u/s 25 (2) (b) of the U.P. Municipalities Act the Bench observed that that provision does not debar the Commissioner from taking such initial steps as may be necessary to declare a candidate to have been duly elected. A Commissioner is in a sense a Court of appeal and as a Court of appeal he would normally have the same powers as the trial court (Returning Officer) unless there is something in the Act or in the Rules to take away that power. The same question again came up for consideration before a Bench of this Court in Trilok Chand v. The Election Tribunal 1959 ALJ 203 . This was also a case under the U.P. Municipalities Act. After analysing the provisions of the U.P. Municipalities Act and Rules the Bench observed that the election Tribunal has power to draw lot when it comes to the conclusion that the two rival candidates have secured an equal number of votes at the election. This decision relied on the following observations made by the Supreme Court in Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others, :

Rule 47 (4) is important. It provides that ''the decision of the Returning Officer as to the validity of a ballot paper...shall be final subject to any decision to the contrary given by a Tribunal on the trial, of an election petition calling in question the election''. Under this provision, the Tribunal is constituted a Court of Appeal against the decision of the Returning Officer, and as such its jurisdiction must be co extensive with that of the Returning Officer and cannot extend further.

Under rule 21-P of the rules framed under the U.P. Panchayat Raj Act the Nirvachan Adhikari undoubtedly has the power to draw lot in a situation where both the candidates have secured equal number of votes. Under rule 21-M (3) the decision of the Nirvachan Adhikari as to the validity of a ballot paper or of a vote given on any such ballot paper shall be final subject, however, to any decision to the contrary given on the trial of an election petition calling in question the election. It is thus obvious that the question of validity of a ballot paper is open to scrutiny by the election Tribunal. This jurisdiction is obviously of an appellate nature. The Tribunal therefore, is competent to exercise the same power which is vested in the Nirvachan Adhikari where as a result of its decision at the time of hearing of the election petition it is found that both the candidates had secured equal number of votes.

Our attention was invited to our own decision in CMW No. 7924 of 1973-Lalloo Singh v. Prabeen Singh- decided on 13-11-1979. That decision was rendered in per curiam. The earlier Division Bench decisions of this Court in Mani Ram and Trilok Chand''s cases (supra), which were binding on us, were not brought to our notice and that led us to take a contrary view, which in our opinion is not sound. The view that we are taking in this petition was also taken by another Bench of this Court in CMW No. 1779 of 1974-Gorey Lal v. SDO- decided on 21-11-1979. In Raj Mangal Singh''s case also the attention of the learned single Judge was not invited to the earlier Division Bench decision of this Court in Mani Ram and Trilok Chand''s cases (supra). Both the aforesaid decisions related to the provisions of the U.P. Municipalities Act but the principle laid down in those decisions are clearly attracted to an election held under the U.P. Panchayat Raj Act also. It must, therefore, be held that the SDO was in error in holding the election to be invalid and declaring a casual vacancy.

The petition is accordingly allowed. The impugned order of the SDO, dated 28-11-1974 is quashed. The matter shall go back to the SDO who after notice to the parties shall draw a lot and declare that candidate elected on whom the lot falls. In the circumstances of the case parties shall bear their own costs.