HARISH CHANDRA SINGH AITHANI Vs. GOVIND SINGH DANU

JUDGEMENT

(1.) BY means of this appeal, the judgment and order dated 13.10.2014 rendered by the District Judge, Bageshwar in Election Petition No. 2 of 2014, is under challenge.

(2.) HAVING heard the learned senior counsel for appellant (Harish Chandra Singh Aithani) and learned senior counsel for caveator/respondent no. 1 (Govind Singh Danu), it transpires that there were -20 -Members of Zila Panchayat, Bageshwar, who had to elect one President amongst them. So, three candidates, for the top post of Zila Panchayat, were in fray, namely, Govind Singh Danu, Harish Chandra Singh Aithani, and Bhagat Singh Dasila (hereinafter would be called as Mr. Danu, Mr. Aithani and Mr. Dasila respectively). Election was held wherein Mr. Danu and Mr. Aithani secured 10 votes each, which are of first preference, out of total 20 in number. Mr. Dasila, the third candidate, could not secure a single vote of first preference i.e. he did not cast vote of first preference even in his own favour to elect himself. Thus, it is clear that Mr. Dasila was not the contesting candidate, as envisaged under Instruction no. 4(1) of Schedule -II of Rule 26 of U.P. Zila Panchayats (Election of Adhyaksha and U.P. Adhyaksha and Settlement of Election Disputes) Rules 1994. Rather, he was simply a 'continuing candidate' as contemplated under Instruction No. 1(1) of Rule 26 of Schedule II of the aforesaid Rules. It is also clear that out of these secured -10 -votes of each included the vote (favouring ballot paper) of a particular candidate in his own favour. The quota for being elected on the post was obviously -11 -. The Returning Officer, in this eventuality, exercising the procedure as laid down under Instruction No. 4(2)(b) of the above Schedule & Rules, drew a lot, on the basis whereof, Mr. Aithani was elected for the top post. Mr. Danu, feeling aggrieved, filed the election petition, as afore -stated. Learned District Judge, Bageshwar called on the ballots before him in the open Court and found that the equal number of first preference votes were secured by Mr. Aithani and Mr. Danu, as has been stated above, but he noted that one of the ballot also expressed the second preference vote to Mr. Danu. Thus, he arrived at a conclusion that in case the first preference was equal, then consideration of second preference is the determinative factor and by counting votes in favour of Mr. Danu to -11 -, which is the magic number of quota, he declared Mr. Danu as elected with a direction to the Returning Officer to ensure the administration of oath to Mr. Danu on the top post of Zila Panchayat without any further delay.

(3.) PRIMA facie, I feel that the total number of votes i.e. the votes of first and second preference of all the candidates, cannot be more than twenty. If the second preference vote was taken into consideration by learned lower court, then it cannot be denied that the first preference vote of that candidate was not considered. The second preference vote of a voter can be considered only when his first preference vote has not been taken into consideration. Since, only the single voter (may be anyone out of 10 including Mr. Dasila) has expressed his second preference on the ballot paper, besides his first preference, thus, it is clear that the first preference has already been considered to make it the total count of votes as - -10 -in favour of Mr. Danu. In such a case, the second preference of the same voter should not have been taken into consideration by the learned District Judge for the simple reason that when the first preference of a voter had been counted in favour of Mr. Danu, then the second preference, of that very voter, can never be taken into consideration.