Rajinder Singh and others vs Sunedr Singh and others

Shamsher Bahadur, J.—What is sought to be quashed in this petition under Articles 226/227 of the Constitution of lndia is the order of the Deputy Commissioner, Ludhiana passed by him as a prescribed Authority setting aside the election to the Primary Members of the Panchayat Samiti Mangat Block held on 22nd of January, 1965 in an election petition before him preferred by the second respondent, Bachan Singh.

The election to the Primary Members of the Panchayat Samiti Mangat Block was held on 22nd of January, 1965 under the provisions of the Punjab Panchayat Samitis & Zila Parisbads Act, 1961 (hereinafter called "the Act") and the various rules framed thereunder. In this election, petitioners l to 10 were elected as also respondents 3 to 7 while respondents 2 and 8 to 25 were defeated Bachan Singh the second respondent, who was a Sarpanch of village Uppal in Mangat Block was declared defeated and he preferred an election petition u/s 121 of the Act and this was heard by the Deputy Commissioner Ludhiana. Under sub-section (2) of section 121 the prescribed authority may-

(a) if it finds, after such inquiry as it may deem necessary, that failure of justice has occurred, set aside the said election, and a fresh election shall thereupon he held;

(b) * * *.

Under the Punjab Panchayat Samitis and Zila Parishads (Election Petition Rules embodied in Appendix No. 6 of the Rules of 19S1 the grounds on which the election can be called in question are reproduced in rule 3, these being:-

The election of any person as a Member, Vice Chairman or Chairman of a Panchavat Samiti may be called in question by an elector through an election petition on the ground that such person has been guilty of a corrupt practice specified in the Schedule or has connived at, or abetted the commission of any such corrupt practice or the result of whose election has been materially affected by the breach of any law or rule for the time being in force or there has been a failure of justice.

The election was challenged broadly on four grounds. It was first alleged that out of 17 votes polled in favour of the election petitioner Bachan Singh (now respondent 2), 7 were held to be illegally invalid. So far as this ground is concerned the Prescribed Authority found against the second respondent and concluded thus:-

I have looked up the votes that had been rejected and found that there was sufficient ground for rejecting the votes and hence hold that there was no illegal rejection of the valid votes.

The second ground on which the election was challenged was a breach of rule to which I would briefly advert. It was stated that the ballot box was not shown to the candidates to satisfy them that it was empty. It was neither locked nor sealed in the presence of the contesting candidates nor were they afforded opportunity to affix their seals. The relevant rule is contained in the Punjab Panchayat Samitis (Primary Members) Election Rules, 1961 and rule 16(2) is to the this effect:-

Immediately before the commencement of poll, the Returning Officer shall show the ballot-box to such contesting candidates as may be present to satisfy them that the ballot box is empty. The Returning Officer shall therafter lock the ballot-box and affix his seal, as well the seal, if any, of the contesting candidates, if they so desire, upon it in such a manner as to prevent its being opened without breaking such seals.

The Returning Officer was examined and stated that the empty ballot box was shown to the persons concerned though the note which he male to that effect was not on the file. It may be assumed in favour of the second respondent that the conclusion of the Prescribed Authority is correct that there was a breach of rule 16(2).

The third ground on which the election was challenged was that the contesting candidates were not permitted to be present at the time of counting which was done in their absence The Prescribed Authority has found that the Returning Officer though he stated that he allowed all the contesting candidates to witness the counting, had to admit that there was not enough room for all the persons who wanted to come inside. Under sub-rule (9) of rule 16 of the (Primary Members) Election Rules, the Returning Officer shall, after the voting is over, count the votes, with the aid of persons appointed under rule 15 in the presence of such contesting candidates as desire to be present, prepare statement in Form VI and declare the results in the following manner-

(a) * * *

(b) * * *

It may again be assumed in favour of the second respondent that the persons who wanted to be inside the room at the time of counting at least some of them could not be present there and there was some breach of rule 16(9). The last ground of challenge is that the Returning Officer did not sign or affix his seal on the ballot-papers before supplying the same to the voters. The relevant rule is 16(3) of the (Primary Members) Election Rules, 1961 which requires that-

* * *

The Returning Officer shall also affix on the ballot-paper, before supply to the voters, a stamp or his signature so as to indicate its authenticity.

It is the finding of the Prescribed Authority That the ballot-papers were initialled and not signed by the Returning Officer. So there was an element of breach of this rule as well.

It has been very strenuously contended by Mr. Sibal that even these three statutory irregularities did not entitle the Prescribed Authority to set aside the election without a finding that the result of the election had been materially affected or a failure of justice had resulted. All that the Prescribed Authority could state and has stated is that in his opinion "some of the mandatory provisions of the election rules have not been followed and this might have resulted in injustice to some of the candidates including the petitioner". This is a finding which is vague, uncertain and speculative Rule 3 of (Election Petition) Rules says that the result of an election must have been materially affected of there must have been a failure of justice if there had been any breach of any election rule Assuming in favour of the second respondent that there has been a breach of election rules it was the duty of the prescribed Authority to reach a definite conclusion that the result of the election had been materially affected. The Prescribed Authority was not certain in his own mind that injustice would positively have resulted in consequence of the breaches. It was ruled by their Lordships of the. Supreme Court in Vashit Narain Sharma Vs. Dev Chandra and Others, that the words "the result of the election has been materially affected" indicate that the result should not be judged by the mere increase or decrease in the total number of votes secured by the returned candidate but by proof of the fact that the wasted votes would have bean distributed in such a manner between the contesting candidates as would have brought about the defeat of the returned candidate. In the words of Mr. Justice Ghulam Husan speaking for the Court "the language is too clear for any speculation about possibilities". The court should be able to reach the conclusion in a positive manner that the result of the election has been materially affected. The words "the failure of justice has occurred" have to be read ejusdem generis and it mast be found that the breach of the rules has either materially affected the election or that failure of justice has actually occurred. In Pala Singh v. Nathi Singh (1962) 64 P.L.R. 1110 a Division Bench of this Court in construing section 121 of the Act observed that the expression "failure of justice" though, if left by itself is vague and indefinite expression, yet in view of section 115(2)(b) of the Act and rule 3 of the Punjab Panchayat Samitis and Zila Parishads (Election Petition) Kales, it gains definite meaning in that the failure of justice means failure of justice in the wake of the provisions of rule 3 and the commission of any of the corrupt practices as given in the schedule to the said rules. So read with rule 3 the effect of section 121 of the Act is that if an election is to be set aside for breach of rules it must be shown that failure of justice has occurred or the result of the election has been materially affected. There is no finding of the Prescribed Authority that the result has been materially affected. The halting nature of the finding that there may have been some injustice cannot be equated with a finding that failure of justice in fact has resulted. In this view of the matter the order of the prescribed Authority is unsustainable and must be quashed. This petition will, therefore, be allowed and the order of setting aside the election quashed. In the circumstances of the case I will make no order as to costs.