Raja Gopala Rao vs Election Commr. and Others

Satyanarayana Raju, J.—In this writ petition, the petitioner seeks an appropriate writ to Quash the order dated 2-12-1953 of the election commissioner, Vijayawada In o. P. No. 25 of 1953.

The petitioner and the third respondent were rival contestants at The election of the president of the panchayat board of boddapadu in Vijayawada taluk of the krishna ''district, held on 2-5-1953. The 2nd Respondent in the present petition was the election officer appointed Toy the regional inspector of municipal councils and local boards.

For the purpose of electing members to the panchayat the village Of boddapadu was divided into three wards and each of them had been Allotted two seats, one seat in the 3rd ward having been reserved for The scheduled castes. All the voters in all the wards are to the President. The panchayat is a minor panchayat and the election is by Show of hands. The number ol voters in ward'' no 1 is 281, in ward no. 2. 2(55. And in ward no. 3. 311, which makes a total of 857 voters in the Village. The actual number of votes polled at the election was 252 in Ward no. 1, 225 in ward no. 2, and 260 in ward no. 3, which makes a Total of 737.

After determination of the number of votes ''secured by each of the Member candidates, the name of the 3rd respondent and the petitioner, Who were the contestants for the presidentship, were called and the Voters in each of the wards, 1, 2, & 3 it appears, were asked by the Election officer to raise their hands in favour of each of the Candidates. The election officer recorded the following votes for the 3rd respondent and the petitioner respectively:

ward no. 3rd respondent petitioner. 1 180 124 2 152 141 3 112 165 ______ ______ 444 430

According to this dent secured votes in petitioner votes, which Make a total of 874 votes. It may be stated here that while the total Number of voters who participated in the elections is 737, according to The declaration made by the election officer, the total number of votes Recorded at the election of the president is 874 the election officer Declared the 3rd- respondent as having been duly elected for the Presidentship, and thereupon the petitioner filed o. P. No. 25 of 1953 To declare the election of the present 3rd respondent as president and Respondents 4 to 7 as members void and to direct fresh elections. The Petitioner complained of various irregularities in the conduct of the Elections of the president and members and .the declaration of the Results by the election officer.

The election commissioner, however, held that so far as the Election of respondents 2 to 5, the members, was concerned, there was no Evidence and the petition could be dismissed against them on the simple Ground that none of the witnesses for the petitioner said anything Against their election. So far as the election and the declaration of The presidentship is concerned, the election commissioner held that the Election officer did hot tamper with the election record as alleged by The petitioner and that the excess number in the votes polled must have Been due to only double voting and nothing else. In the result, he Dismissed the petition.

Mr. K.v. venkatasubramania ayyer, appearing for the petitioner, Contends that the election officer failed to ascertain fairly and record Correctly the wishes of the voters of the panchayat in the matter of Choosing their president; that the election is opposed to law and void Because the election officer had failed to discharge his primary duty of Correctly ascertaining the wishes of the voters of the panchayat in the Election of the president; that, apart from the irregularities Complained of, there is no legal election at all cr any legal Declaration of the results of the election; and that the election Commissioner did not address himself to the real question, viz., whether The election officer discharged his primary duty in the matter of Ascertaining the wishes of the voters.

The learned advocate general, who appears for the 3rd respondent, Contends that there has been no contravention of the rules made for the Conduct of the election, and in any view, the petitioner has failed to Prove that the result of the election has been materially affected by Reason of such contravention, if any.

The learned counsel for the petitioner now confines his Submissions with regard to the election of the president. I am not, Therefore, called upon to consider the validity of the election of the Members. In fact, the finding of the election commissioner with regard To the election of the members, namely, that no evidence had been added At all with regard to their election, is conclusive.

Before i proceed to consider the respective contentions of the Parties with regard to the election of the president. It is necessary to Sort out the relevant rules framed under the madras village panchayats Act for the conduct of the election of president.

Rule 8 of part 11, which applies to all panchayats which are not Governed by part i, provides as follows:

the presiding officer shall ascertain by show of hands or Otherwise how many of the electors present and entitled to vote at the Election for the ward, are in favour of each of the candidates'' in Respect of whom the poll is taken and shall make a note of It.

The first of the contentions on behalf of the petitioner relates To the correctness of ex. A 4, which purports to contain the votes Polled by the 3rd respondent and the petitioner. It has been alleged Before the election commissioner and the allegation has now been Repeated before me that the record of the election has been tampered With: that in respect of ward no 1, the election officer recorded 124 Votes for the 3rd respondent in the first instance and 180 for the Petitioner; but that he subsequently scored out the figures and Substituted 180 for via and 124 for 180, thereby making it appear that The petitioner polled a lesser number of votes than the 3rd respondent. I have examined ex. A-l. There is a clear correction so far as the Entries of the votes in regard to ward no. 1 is concerned but it is not Possible to ascertain with definiteness as to what the original figures Were. The election commissioner was not prepared to say that there had Been any tampering i with the record of the election result and though It may be said that there is room for suspicion, i prefer to accept the Finding of the election commissioner in this regard because not to do so Would be to substitute my surmise for the finding of the election Commissioner.

As i stated at the beginning, the total number of voters in the Panchayat was 857 and the total number of voters present was only 737, While the total of the votes cast for the 3rd respondent and the Petitioner was 874, which means that at least 137 persons had voted Twice. The total number of votes polled being greater than the number of Voters present, the election commissioner said that it might be due to (i) non-voters being present, some voters raising both hands, and (iii) Double voting i.e., some voters voting for the 3rd respondent first and Then for the petitioner. He eliminated the possibility of non-voters Having been allowed to vote and some voters raising both hands. He found That could not have been the 4 case. Then he proceeded to consider Whether i there was double voting, which according to him, means some Voters voting for the 3rd respondent t, first and then voting for the Petitioner. It may be mentioned that it was not the case of the Petitioner or the 3rd respondent that there was double. Nothing in the Sense in which it has been understood hp by the election commissioner. But the election if'' commissioner went on to point out that the 3rd Respondent''s name begins with "n" and the petitioner''s officer Originally put the figures of if the petitioner for the 3rd respondent And the 3rd respondent''s figure for the petitioner by mistake and Corrected them after discovering the mistake and that the excess number In the votes polled, must have been due only to double voting and Nothing else, the election commissioner seems to have surmised that the 3rd respondent''s name before nagendra babu and the petitioner''s name Being if rajagopala rao the name of the 3rd respondent should have Been called first and his votes recorded, that the votes recorded for The 3rd respondent must have been correct but that some of the voters Present at the polling might have voted for the 3rd respondent and then Voted for the petitioner again. In fact, that is the contention of the Learned advocate general who appears for the 3rd respondent.

The learned government pleader appearing for the election Commissioner contends that there is no prohibition on a voter voting for One candidate in the first instance and again for the second candidate, And he has cited before me the instructions issued to the election Officers for the conduct of elections in support of his submission, i Have already set out rule 8 of the rules for the election of presidents Of minor panchayats. As i understand that rule, there is nothing to show That the rule-making authority contemplated a voter electing a president Exercising more than one vote whatever may be the number of candidates Seeking election to the office of the president. In fact, such a Construction would be contrary to the intendment, of rule 8, which is Mandatory and which] casts a statutory duty on the election officer, Whatever method he employs, to ascertain the wishes'' of the voters.

Rule 8 casts a mandatory duty on the election officer to make Certain by whatever method he employs, by show of hands or otherwise, as To how many of the electors are present and who are entitled to vote and Also this is important to find out how many of them are in favour of Each of the candidate in respect of whom the soil is taken. The duty of The election officer, therefore, was to find out how many of the voters} Present were in favour of the 3rd respondent and how many of them were In favour of the petitioner. I have no doubt, in my mind, that the Election officer failed to discharge the statutory duty imposed upon him By rule 8. The poll was taken ward wise. In the poll taken for ward no. 1 In respect of the office of the presidentship, the election officer Counted 304 votes as having been cast either in favour of the 3rd Respondent or the petitioner while the voting strength for that ward'' Was only 281 and while as a matter of fact 252 voters alone participated In the polling. If the election officer was really intent upon Ascertaining the true wishes of the voters, this result should have put Him on enquiry and at least in respect of wards 2 and 3 better methods Of ascertaining the wishes of the electorate should have been followed. But that he did not do.

The petitioner''s counsel strongly relies upon ex. A 8 which is a Confidential report submitted by the additional district panchayat Officer to the regional inspector of municipal councils and local Boards, vijayawada on the 19th of may. 1953 in regard to this election, Which la as follows:

i contacted the deputy panchayat officer and told him that He should not hurriedly skip over the voters as he did and that he Should steadily count the hands loudly to allay the fears of the Parties........ But he turned a deaf ear to my advice and persisted in Counting in whispers for the iii ward also. Since i have received Complaints from both parties. I tried to count the hands myself and Actually counted about 50 hands as hurriedly and speedily as possible. But the deputy panchayat officer had by that time finished the counting Of more than 100 hands. I tried the counting for three or four Candidates, but all the same, my speedy counting could not catch up with His counting. From the above, i had to interfere that the deputy Panchayat officer did not actually count the hands but only skipped over Them with, his finger and recorded votes as ho liked on a general Estimate of hands raised for each candidate.

The election commissioner states that the admissibility of ex. A-8 in evidence was opposed by the advocate for respondents 1 ''to 5, That is the 3rd respondent and the members opposing the petitioner, but That the objection was overruled and the document was admitted in Evidence. In respect of this document privilege seems to have been Claimed by the regional inspector but the election commissioner held That the document is a public document and therefore did not require any Proof.

The advocate general submits that the document cannot have any Value in the absence of the evidence of the officer who made the report. The additional district panchayat officer was summoned by the petitioner Jour limes for the adjournments on 10-8-1953, 3-9-l953, 3-10-1953 and 11-10-1953. He was also (summoned by the contesting respondents for the Adjournments on 3-9-1953, 3-10-1953, and 24-10-1953. They also summoned The election officer for the adjournment on 3-10-1953.'' subsequently When it was represented for the petitioner that they were not going to Examine the additional district panchayat officer, the election Commissioner wanted to examine him and the election officer as court Witnesses and sent notices to them thrice but they did not attend the Court on any one of the occasions and the petition had to be decided Without their evidence. So, the result was that the enquiry was Concluded without the evidence of the election officer and the Additional district panchayat officer which is indeed very regrettable. The election commissioner was right in considering that he should have The evidence of the election officer and the additional district Panchayat officer. But having realised the need of having their evidence And having actually summoned them on three occasions, i am unable to see The reason why the attempt was ultimately given up.

But the document itself is a public document and it has been Properly received in evidence. This document throws a hood of light on The method adopted by the election officer in conducting the elections. The election officer seems to have taken this task in a light-hearted Manner and appears to have counted the votes in an arbitrary fashion. According to ex. A. 8, the election "officer did not actually count the Hands but only skipped over them with his linger and recorded votes as He liked on a general estimate of hands raised for each candidate. If This is the way the polling was conducted, there is little wonder that When 737 voters were present, 874 votes were actually recorded. In fact, If ex. A. 8 is to be accepted, the election officer seems to have Followed no method at all and there appears, to have been no attempt at Ascertaining the number of votes cast for either of the candidates. Hence, i have reached the conclusion that there is a contravention of The mandatory duty laid down by rule 8 on the election officer.

Even so, the learned advocate general contends that the election Cannot be set aside be-cause under rule 11 (c) of the rules for the Decision of election disputes, non-compliance with the provisions of the Act or the rules thereunder alone is not sufficient to declare the Election void and the petitioner must further show that the result of The election has been materially affected by such non-compliance. Rule 11 (c) provides as follows:

If in the opinion of the election commissioner;

(c) the result of the election has been materially affected by any Irregularity in respect of a nomination paper or by the improper Reception or refusal of a nomination paper or vote or by any Non-compliance with the provisions of the act or the rules made Thereunder, the election of such returned candidate shall be Void.

a fair reading of this rule shows that mere noncompliance with the Provisions of the act or the rules made thereunder is not per se Sufficient to invalidate the election of the returned candidate but it Must be further shown that the result of the election has been Materially affected by reason of such non-compliance.

The learned counsel for the petitioner, however, contends that The total number of valid votes being 737 and the petitioner having Obtained according to ex. A. 4, 430 votes he must be declared elected, And the reasoning by which the election commissioner arrived at the Conclusion that the votes in favour of the 3rd respondent are valid but That the votes cast in favour of .the petitioner contain votes of Persons who voted twice is a pure surmise, i do not think that the Conclusion arrived at by the election commissioner in this regard is Correct. In fact that there was double voting, in the sense that after The 3rd respondent''s votes were correctly polled and noted, some of the Voters who voted for the 3rd respondent voted again in favour of the Petitioner, is not the case of the 3rd respondent. Of course, that would Not be the case of the petitioner. If the election commissioner had on The basis of those surmises declared the 3rd respondent to be the duly Elected candidate holding that he should have secured more votes than The petitioner, that would obviously be an error apparent on the face of The record as such conclusion rests mainly on surmises and nothing else. In this case i am satisfied that the election officer did not count the Votes properly and correctly. In fact. Ex. A. 8 shows that there was no Counting at all. The election officer having merely recorded the votes As he pleased. This is a flagrant breach of the election law. While it Is a sound principle of justice that the election of a successful Candidate is not to be lightly interfered with, one of the essentials of That law is also to safeguard the purity of the election process and Also to see that people do not get elected by flagrant breaches of that Law.

If in fact there was no counting at all by the election officer, As is obvious from ex. A. 8, and that counting is neither proper nor Correct, the conclusion must follow that there was in fact no election In the eye of law. The jurisdiction of this court to issue a writ of Certiorari to quash either the original older of the election officer or The order made by the election commissioner, or both, cannot be Doubted.

In halsbury''s laws of england, volume 9, (lord hailsham''s second Edition) at page 873, it is stated thus:

although there may be an appeal from an order of justices to Quarter sessions, a dissatisfied party may nevertheless apply to the King''s bench division for a writ of certiorari, instead of appealing, But he cannot do so until the time for appealing has expired, and Pending an appeal the writ will not be issued. Where there has been an Appeal to quarter sessions from an order of justices, and the appeal has Been determined, the writ of certiorari may be applied for to remove Either the original order, or the order made upon appeal or both. Where The order made upon appeal confirms the original order, and only the Order made upon appeal is removed by certiorari and quashed the original Order remains valid.

Holding as i do, that the procedure adopted by the election Officer is not the correct or the proper way of arriving at the result Of the election and that the finding of the election commissioner that The 3rd respondent must have secured more votes than the petitioner, is Vitiated by an error apparent on the face of the record, as such Conclusion rests merely on a surmise and nothing else, the order of the Election commissioner confirming the order made by the election officer Declaring the 3rd respondent as having been duly elected must be Quashed.

1 hold that in the circumstances of this case, die proper order To be made is to issue a writ quashing the order of the election Commissioner which confirmed the declaration made by the election Officer and to declare that the election of the 3rd respondent is void And must be set aside, and i direct that there shall be a fresh election To the office of the president. The petitioner will have the costs of This writ petition from the 3rd respondent. Advocate''s fee rs. 200/-.

This writ petition must fail in so far as it is directed against The election of the members.