KASHI BUX SINGH Vs. SUB-DIVISIONAL OFFICER AMETHI

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution praying that the order passed by the Sub-divisional Officer dismissing the petition filed by the applicant under Section 12-C of the Panchayat Raj Act challenging the election of the opposite party No. 3 as the Fradhan be quashed.

(2.) The facts briefly are that the petitioner and the opposite party No. 3 were the two rival candidates for the office of Pradhan. Both of them received 109 votes each. One vote was received in favour of the petitioner through post. The Returning Officer rightly rejected that vote inasmuch as there was nothing in the rules which authorised the casting of the vote by post. The result was that both the candidates obtained 109 votes. The Presiding Officer acting on the instructions from the Assistant Returning Officer drew the lot and as a result the lot was drawn in favour of the present petitioner. It is asserted by the petitioner that the Presiding Officer then announced that the petitioner had been duly elected but there was no declaration of the results by the Returning Officer as contemplated under Rule 19-I of the Rules framed under, the Act. It was pointed out to the Returning Officer that under the provisions of Rule 19-H it was the Returning Officer who could have drawn the lot and he was of the opinion on the reading of the said rule that it was so. He therefore drew the lot again and this time it was drawn in favour ofl the opposite party No. 3; thereafter he duly declared the results under Rule 19-1 in favour ofl the opposite party No. 3. The petitioner then filed an election petition, challenging the election of the opposite party No. 3 before the Sub-Divisional Officer under Section 12-C and contended that the Presiding Officer having drawn the lot once on the instructions received from the Assistant Returning Officer it will be deemed to have been the act of the Returning Officer himself and the Returning Officer had no right to undo that and draw a lot second. time. The Sub-Divisional Officer did not accept this contention and came to the conclusion that the Jot had to be drawn by the Returning Officer himself. He had no power to ask the Presiding Officer to do so and consequently the first lot drawn by the Presiding Officer even though on. the instructions received from the Returning Officer was no drawing of the lot at all in the eye of law and the Returning Officer could draw the lot second time. There was therefore no breach of any rules which materially affected the results as contemplated under Section 12-C and the petition was rejected by him. He has also towards the end of his order remarked that the Presiding Officer had acted very irresponsibly and also not in proper manner which thus caused some suspicion that the conduct of the Presiding Officer was not above board. But, however, the petition was not dismissed on any clear finding that the act of the presiding Officer in drawing the lot first time was mala fide. Mr. Dwivedi has very strenuously contended that the drawing of the lot is a ministerial act and it could be delegated to any other officer by the Returning Officer. It was under his instructions that the Presiding Officer drew the lot and if the delegation is not invalid it cannot be said that the Presiding Officer's action in drawing the lot was a nullity which could be ignored by the Returning Officer. If the drawing of the lot was only a ministerial act and it could be delegated it was also an act which could have been cancelled by the Returning Officer himself and if he in the circumstances of the present case thought that the power was not properly exercised under the rules by the Presiding Officer he could always set aside the first proceeding for lot and draw it again. Mr. Dwivedi's argument, however, was that as under Rule 19-H a right accrues to a candidate when a lot has been drawn inasmuch as a vote is added to his votes it is not open to the Returning Officer after having once exercised that power to recall the whole proceedings and to exercise the power afresh. Rule 19-H of the Rules framed under the Act provides as follows:

(3.) Moreover the only ground on which 'the petitioner could succeed under Section 12-C of the Panchayat Raj Act would have been if there was any violation of the provisions of the rules which materially affected the results of the election. It cannot be said that when the Returning Officer drew the lot again he committed breach of any rules or of the provisions of the Act. As soon as it is stated that the act of drawing a lot is a ministerial act there is an implied power to recall that proceeding and to draw the lot afresh and it cannot be said that the Returning Officer when drew the lot a second time acted in violation of any of the provisions of the statute or rules framed thereunder.