Sawan Mal and Others vs The State and Others

P.C. Pandit, J.—The Election of the Panchayat Samiti; Palampur Block, District Kangra, was held on 3rd September, 1931 and, as a result, 16 persons including Hoshiar Singh, Jagdish Ram Sud, Sawan Mal and Raghbir Singh, were duly elected as Primary Members. These four persons and one more, named, Jagdish Ram of Jia, secured nine votes each. The Returning Officer, therefore, drew the lots under Rule 16(9) (b) of the Punjab Panchayat Samiti (Primary Members) Election Rules, 1961, with the result that first four were declared elected and were placed at Nos. 13, 14, 15 and 16. Akal Chand, a defeated candidate, thereupon filed an election petition u/s 121 of the Punjab Panchayat Samiti and Zila Parishads Act, 1961, challenging the election of all the 16 members. The main ground taken by him was that the Presiding Officer had improperly rejected three ballot-papers of the voters who had cast their votes in his favour. This petition was tried by Shri Prem Kumar, who was acting as the Enquiry Officer. He came to the conclusion that there was merit in the contention of Akal Chand and the Presiding Officer had illegally and improperly rejected the three disputed ballot-papers. As a result, he set aside the election of the four persons mentioned above and ordered fresh election for these four seats. Against this, the present writ petition has been filed by these four persons.

The first contention raised by the learned counsel, for the petitioners is that once it was found that the three voters had not placed the cross-mark ''X'' in column 4 of the ballot-paper as provided by Rule IB (4), it must be held that the mark ''X'' had been placed in an ambiguous manner and by virtue of the provisions of Rule 17, these votes became invalid and had thus been rightly rejected by the Presiding Officer.

There is no merit in this contention. Rule 17, which deals with the validity of ballot papers, says that any ballot-paper which bears any mark or signature by which the voter can be identified or in which the mark ''X'' is placed in an ambiguous manner or against the names of more than one candidate or which does not bear the official seal or signatures prescribed in sub rule (3) of Rule 16, shall be invalid. A reading of this Rule would show that it did not lay down that in case the cross-mark ''X'' had not been placed in column 4 of the ballot-paper, it would become invalid, because then it must be held that the same had been placed in an ambiguous manner. In the present case, it has been found by the Enquiry Officer that the cross-mark ''X'' in two ballot-papers had been placed on the name of Akal Chand and in the third on his symbol (scissors). The Enquiry Officer further found that the intention of the voter in each case was quite clear that he wanted to vote for Akal Chand and there was no ambiguity about the same. Under these circumstances, it cannot be held that this decision of his was in any way incorrect in law.

The next contention raised by the learned counsel was that the Enquiry Officer was wrong in setting aside the election of the petitioners alone, whereas u/s 121(2)(a) of the Act, the entire election of all the 16 members had to be quashed and fresh election ordered.

This point was also raised before the Enquiry Officer and the same was negatived by him on the ground that even if the three votes in dispute were counted in favour of Akal Chand, the first 12 elected Members would not have been affected, because in any case they would have been elected. The provisions of section 121 only say that if the Enquiry Officer finds that failure of justice has occurred in an election he may set it aside and a fresh election shall, thereupon be held. In the present case, no failure of justice has occurred qua the first 12 Members and, under these circumstances the Enquiry Officer was quite justified in setting aside the election of only the remaining four Members, namely, the present petitioners. Moreover, the election petition under this section is filed against the election of any person as a Member of the Panchayat Samiti. In other words, the election of a particular person is challenged. If in a case the election of a number of persons is being challenged, it does not mean that if failure of justice has occurred only in one case, then the election of all the members imp leaded should be set aside. Only the election of that Member or those Members, as the case may be, in whose case failure of justice has occurred, would be set aside. There is thus no force in this contention as well.

Lastly, it was submitted that in case the entire election is not to be set aside, then the election of only Raghbir Singh, petitioner, who was No. 16, should have been annulled and the Enquiry Officer could not quash the election of the other three petitioners, namely, Hoshiar Singh, Jagdish Ram Sud and Sawan Mal, who were at Nos. 13, 14 and 15. The argument was that Akal Chand would have been declared elected and placed at No. 13, if the three votes had been counted in his favour while the three others who were at Nos. 13, 14 and 15, would then have been at Nos. 14, 15 and lb as a result of the draw and thus only the election of Raghbir Singh should have been set aside-

There is no substance in this contention also. Akal Chand cannot be declared elected, because section 121 clearly says that a fresh election has to be held in case failure of justice has occurred in an election. Since failure of justice occurred in the case of all the four petitioners, therefore, the Enquiry Officer was right in setting aside their election and ordering a fresh election for these four vacancies.

The result is that this petition fails and is dismissed. In the circumstances of this case, however, there will be no order as to costs in these proceedings.