Raghbir vs Additional District Judge, Rohtak and ors.

D.V. Sehgal, J.

Elections to the Gram Panchayat of village Dobh, tehsil and district Rohtak, were held on 27.6.1983. The petitioner along with respondents Nos. 3 to 5 filed his nomination papers for contesting the election to the office of Sarpanch. Their nomination papers were accepted. According to the result declared, the number of votes secured by each of these candidates were

Petitioner

482

Respondent No. 3

456

Respondent No. 4

192

Respondent No. 5

60

Thus, the petitioner, having secured the highest number of votes, was declared elected to the office of Sarpanch.

Respondent No.3 challenged the election of the petitioner by filing an election petition before the Prescribed Authority under the provisions of the Punjab Gram Panchayat Act, 1952 (hereinafter called `the Act''), as applicable to the State of Haryana, on the ground, inter alia, that the nomination papers of Ved Paul respondent No. 5 were wrongly accepted as he was below the prescribed minimum age of 25 years on 26.6. 1983 and was thus not qualified to contest the election.

The Prescribed Authority respondent No. 2 allowed the election petition vide order dated 9.12.1985 Annexure P. 1 holding that Ved Paul respondent No. 5 was not qualified to contest the election being less than 25 years of age on the material date and that by the wrongful acceptance of his nomination papers the result of the election in so far as it concerned the petitioner has been materially affected. The election of the petitioner was dismissed by the learned Additional District Judge (III), Rohtak, respondent No. 1, who was vested with the power of Appellate Authority under the Act, vide his judgment dated 13.3.1986 Annexure P. 2. The petitioner has through the present petition prayed for quashing the impugned order Annexures P. 1 and P. 2 respectively, inter alia, on the ground that respondents Nos 1 and 2 have not on the basis of the evidence on the record reached at a finding that the result of the election in so far as it concerned the petitioner has been materially affected. He has contended that the said respondents have set aside the election on the basis of conjectures and surmises, which cannot be sustained in the eyes of law.

I have heard the learned counsel for the petitioner and respondent No. 3, who has come forward to oppose the petition. I am of the considered view that the impugned orders Annexure P. 1 and P. 2 cannot be sustained in spite of fact that as many as 24 witnesses were produced by respondent No. 3 who were voters in favour of Ved Paul respondent No. 5. The learned Additional District Judge himself has observed that the testimony of these 24 witnesses is to the effect that if Ved Paul had not contested the election of Sarpanch, then they would have supported Daya Nand respondent No. 3 and he would have won the election. It has been further observed by him that as polling in the Gram Panchayat elections is by way of secret ballot, it could not be ascertained as to who actually cast his vote in favour of Ved Paul respondent No. 5, but even then he ventured upon the following conjectural conclusion:

"Therefore, if out of these 60 votes, which were secured by Ved Paul, 45 persons had cast their votes in favour of Daya Nand Petitioner then he would have secured more votes than appellant Raghbir. Thus, from the circumstances that Ved Paul had secured much more votes than the difference of votes secured by Daya Nand and Raghbir, it can be presumed that had he not contested the election, the result of the same could be different and in view of the fact that Raghbir, could produce only three persons who have stated that they would have given votes to Raghbir as against 24 persons produced by Daya Nand, there was every possibility that Daya Nand would have secured more votes than Raghbir. If Ved Paul secured less than 28 votes, then of course the position would have different. Therefore, in this case, this special circumstances is itself sufficient to hold that illegal acceptance of nomination papers of Ved Paul has materially affected the result."

In Mahadeo v. Babu Udai Partap Singh and others, A.I.R. 1966 S.C. 824, in regard to the category of cases where the infirmity was improper acceptance of nomination papers, it was observed that different considerations had to be taken into account. They were

"(a) if the nomination accepted was that of the returned candidate, the result must be materially affected;

(b) if the difference between the number of votes was more than the wasted votes, the result could not be affected at all;

(c) if the number of wasted votes was greater than the margin of votes between the returned candidate securing the next highest number of votes; it could not be presumed that the wasted votes might have gone to the latter and that the result of the election had been materially affected.

his was a matter which had to be proved and though the petitioner in such a case was confronted with a difficult situation, he could not be relieved of the duty imposed upon him by Section 100 (1) (c) and if the petitioner failed to adduce satisfactory evidence in support of his plea, the Tribunal would not interfere in his favour and would allow the election to stand."

The question is whether the evidence of 24 witnesses who deposed that they would have voted for respondent No. 3 had respondent No. 5 been not a candidate in the election, can be believed on its face value and on its basis can it be held that the result of the election has been materially affected. The following observations in Paokai Haokip v. Rishang and others, A.I.R. 1969 S.C. 663, guide me to answer this question:

"He (the Judicial Commissioner) took the statements of the witnesses at their worth and held on the basis of those statements that all the votes that had not been cast would have gone to the election petitioner. For this, there is no foundation in fact; it is a surmise and it is anybody''s guess as to how these people, who did not vote, would have actually voted......."

The casting of votes at an election depends on a variety of factors and it is not possible for any one to predict how many or what proportion of votes will come to one or the other candidates.

I have, therefore, no hesitation in reaching at the conclusion that there was no cogent evidence before respondents Nos. 1 and 2 to arive at a concurrent finding that the result of the election in so far as it concerned the petitioner has been materially affected by the improper acceptance of the nomination papers of respondent No.5.

The learned counsel for respondent No. 3 has vehemently argued that a finding of fact arrived at by the inferior Court or Tribunal as a result of the appreciation of the evidence cannot be reopened or questioned in writ proceedings. He has placed reliance on Syed Yakoob v. K.S. Radhakrishnan and others, A.I.R. 1964 S.C. 477, in support of his contention. There is no dispute with this proposition. In fact, the law on the point is well settled, In Syed Yakoob''s case (supra), the Supreme Court further proceeded to observe that if a finding of fact is based on no evidence that would be regarded as an error of law which can be corrected by a writ of certioraris. As already observed by me above, the finding recorded by respondent No. 1 and 2 is not based on any evidence. It is in fact the result of conjectures and surmises alone which cannot be sustained in law.

Consequently, I allow this petition, quash the impugned orders Annexures P. 1 and 2 passed by respondents Nos. 1 and 2 respectively and hold that the result of the election in so far as it concerns the petitioner has not been proved to have been materially affected by the improper acceptance of the nomination papers of respondent No. 5. The election of the petitioner to the office of Sarpanch is therefore upheld. The petitioner shall get costs of this petition from respondent No. 3 which are assessed at Rs. 500/.