BHAGOLEY Vs. BALWANT SINGH AND ANOTHER

JUDGEMENT

(1.) This petition under Art. 226 of the Constitution is directed against an order of an election tribunal under the U.P. Panchayat Raj Act (hereinafter referred to as 'the Act') by which an election petition was allowed by the tribunal, the election of the petitioner was set aside and opposite-party No. 1 was declared as a duly elected Pradhan of a Gaon Sabha. The election of the petitioner was set aside by the tribunal on the ground of gross failure to comply with the provisions of the Act and the rules framed thereunder which had materially affected the result of the election. It was urged before the tribunal in the election petition that votes of certain voters had been wrongly rejected by the counting officer. If those votes had also been taken into account, the petitioner, who had been declared elected by a majority of only four votes, would have been found to have received fewer votes than opposite-party No. 1. It was urged that in thus wrongly rejecting some valid votes, the counting officer had been guilty of gross failure to comply with the provisions of the Act and the rules framed thereunder. The tribunal, in order to decide this question, sent for the ballot papers which had been rejected by the counting officer and examined them in court. On an examination of those ballot papers, the tribunal came to the finding that 18 votes cast in favour of opposite-party No. 1, Balwant Singh, had been wrongly rejected, while 6 votes cast in favour of the petitioner had been wrongly rejected. Consequently, the tribunal held that those votes should be taken into account as their rejection had amounted to gross failure to comply with the provisions of the Act. Those votes having been taken into account, opposite-party No. 1 received 8 votes in excess of the votes received by the petitioner. Consequently, the tribunal proceeded to the next natural in fence that the result of the election had been materially affected. The tribunal, therefore, set aside the election of the petitioner and declared opposite-party No. 1 as a duly elected Pradhan of the Gaon Sabha.

(2.) The main point urged by learned counsel for the petitioner in support of this petition before us was that the election tribunal, in examining the ballot papers and in holding on the basis of that examination that there had been gross failure to comply with the provisions of the Act and the rules, had exercised jurisdiction which was not vested in it. The submission was that whenever there be any violation of any provisions of the Act or the rules made thereunder by any officer or official entrusted with duties relating to the conduct of an election, the appropriate authority, who can set aside or modify any order or declaration made by such officer or official, is the Nirvachan Nideshak (Panchayat) under Sec. 12-BB. Learned counsel urged that Sec. 12-BB having conferred this jurisdiction on Nirvachan Nideshak, we should hold that the intention was that cases of violation of any provisions of the Act and the rules made thereunder must be scrutinised solely by that officer and the election tribunal in exercise of its powers under Sec. 12-C of the Act should be held to be debarred from exercising the same powers because, if it is held that the election tribunal can also exercise the same powers, it would result in two different authorities exercising the same powers without any provision for resolving the conflict between their decisions which may possibly come into existence. It appears to us that the approach to this question suggested by learned counsel is not at all correct.

(3.) Under Sec. 12-C of the Act it is the sole function of an election tribunal to decide questions on the basis of which the election of a candidate already declared elected can be set aside. Sec. 12-C clearly mentions that the election of a person as Pradhan of a Gaon Sabha shall not be called in question except by an application presented under that provision of law and in accordance with it. The effect of this provision is that once candidate has been declared duly elected, no other authority except an authority exercising powers under Sec. 12-C can question the election of the successful candidate and set it aside. For that purpose, an election tribunal is given the power to see whether the result of the election has been materially affected by any gross failure to comply with the provisions of the Act and the rules framed thereunder. Even if it be held that some other authority at some other stage can also examine the same question of gross failure to comply with the provisions of the Act and the rules framed thereunder, it is not possible to hold that the election tribunal thereupon become incompetent to discharge the function conferred on it specifically by Sec. 12-C of the Act. If there be any such conflict, the only proper interpretation would be that any decision given on such questions by any other authority would not, in the matter of deciding an election petition, stand in the way of the election tribunal inquiring into those questions, deciding them on their basis passing appropriate orders on the election petition. It should, therefore, be held that, if there be such a conflict, it would not affect the powers of the election tribunal and either the power of the election tribunal would be the overriding power or the power conferred on the other authority may not be exercisable and may be void. In fact, if the result of the exercise of that power is that the election of a successful candidate is to be set aside, the exercise of that power by any other authority would be void because the jurisdiction to set aside an election is exclusively conferred on the election tribunal.