NIRMAL Vs. U P STATE ELECTION COMMISSION LUCKNOW

JUDGEMENT

(1.) The facts involved in the instant writ petition are that on June, 2000 election for the Office of the Members of the Zila Panchayat was held and the petitioner was declared elected as Member of the Zila Panchayat Kushinagar from Hata (East) constituency, ward No. 23 in the category of 'Woman General'. Respondent No. 5 Smt. Gangotri also contested in the said ward being ward No. 23 Smt. Gangotri is by caste Jaiwsal (Kalver) which is in O.B.C. In the said election, polling took place on 6/08/2000 and the counting also took place on the same day and the result was as follows :1. Smt. Gangotri (respondent No. 5). Secured 20 First Preference votes.2. Smt. Nirmal (petitioner) Secured 20 1st Preference votes.3. Smt. Rita (respondent No. 6) Secured 3 first preference votes.

(2.) In the aforementioned circumstances, the third named woman Smt. Rita who secured the lowest first preference votes i.e. 3rd in number should be eliminated first and thereafter, in between Smt. Gangotri and Smt. Nirmala who having secured equal number of first preference votes, there should have been a decision by lot by the Returning Officer. In this connection Rule 26 of U. P. Zila Panchayats Election Rules may be taken note of. The said Rule provides as follows :26. Determination of result.-After all the valid ballot papers have been arranged in parcels according to the first preference recorded for each candidate, the Returning Officer shall proceed to determine the result of the voting in accordance with the instructions contained in Schedule II to these rules.

(3.) Clause (6) of Schedule II shall also be considered. It appears that clause (6) of Schedule II of U. P. Zila Panchayats Election Rules is relevant for the purpose of determination of the question involved in the instant writ petition. The said clause (6) of Schedule II is set out hereinbelow :6. If at the end of any count, no candidate can be declared elected :(a) exclude the candidate who up to that stage has been credited with the lowest number of votes;(b) examine all the ballot papers in his parcel and sub-parcel, arrange the unexhausted papers in sub-parcels according to the next available preferences recorded thereon for the continuing candidates, count the number of votes in each such sub-parcel and credit it to the candidate for whom such preference is recorded, transfer the sub-parcel to that candidate and make a separate sub-parcel of all the exhausted papers; and(c) see whether any of the continuing candidates has, after such transfer and credit secured the quota.If, when a candidate has to be excluded under clause (a) above, two or more candidates have been credited with the same number of votes and stand lowest on the poll exclude that candidate who had secured the lowest number of first preference votes, and if that number also was the same in the case of two or more candidates decide by lot which of them shall be excluded.All the sub-parcel of exhausted paper referred to in clause (b) above shall be set apart as finally dealt with and the votes recorded thereon shall not thereafter be taken into account.