LAXMAN DAMODHAR ZOTING Vs. SHAMRAO VISHWANATH JAWADE

JUDGEMENT

(1.) The petitioner and opponents Nos. 1 to 3 stood as candidates for election from ward No. 2 to the Gram Panchayat of mouza Khadki. Two members were to be elected from this ward and one of the two seats was reserved for women. After the election, the petitioner and opponent No. 2 were declared elected. Subsequently, opponent No. 1 filed an election petition challenging the election of the petitioner. The learned Civil Judge, who heard the petition, found that 13 voting papers, which bore more than one stamp mark against the name of a candidate, had been wrongly rejected, as in his opinion the manner of stamping did not suggest that the voter in each of these cases intended to record more than one vote for the same candidate. His finding on this point has not been challenged before Rs. The learned Judge also found that one voting paper bearing No. 10 which had been issued to a voter from ward No. 2 had been found in the ballot box pertaining to ward No. 1. This voting paper had been rejected by the Returning Officer because it was not found in the ballot box for ward No. 2. It was admitted before the learned Judge that the ballot boxes for both the wards Nos. 1 and. 2 had been kept in the same room. As the voting paper related to the same election, the learned Judge was of the opinion that this voting paper could not be rejected and it should be considered in counting the votes. The votes recorded on this voting paper were in favour of opponents Nos. 1 and 3. As a result of the recounting of the votes, including the votes recorded on this voting paper, the petitioner and opponent No. 1 were found to have polled equal number of votes. The learned Judge then drew lots and declared opponent No. 1 to be duly elected. He set aside the election of the petitioner.

(2.) MR . Gadkari, who appears on behalf of the, petitioner, has contended that the view taken by the learned Judge in regard to the voting paper No. 10 referred to above is wrong. It seems to us that his contention on this point must be accepted. Mr. Gadkari referred to Rule 24 of the Bombay Village Panchayat Election Rules, 1959, which states that it shall be the duty of the presiding and polling officers and their assistants to see that votes are recorded with absolute secrecy, that only such persons as may be admitted to the polling booth under the rules are admitted thereto and that persons who have recorded their votes or against whom objections have been heard and upheld leave immediately. In the present case, it appears that the ballot boxes for both. the wards Nos. 1 and 2 had been kept in the same room. But in para. 3 of the petition, it has been stated that there were separate booths and separate polling officers for each of these wards. That statement in the petition leas not been denied. Having regard to the provisions of Rule 24, it has been urged by Mr. Gadkari that the voter, to whom ballot paper No. 10 was issued, could not have himself gone to the wrong booth, i.e. to the booth for ward No. 1, and put the voting paper in the ballot box of that ward. It is, however, not necessary to speculate how this voting paper came to be placed in the ballot box for ward No. 1, because the election rules clearly contemplate that in counting the votes for any constituency, only the voting papers contained in the ballot boxes pertaining to that constituency should be taken into consideration. - -

(3.) A ballot paper pertaining to any polling' station must, therefore, be rejected if it is found in the ballot box of another polling station. It follows that a ballot paper contained in a ballot box for one constituency cannot be considered while counting votes of candidates from another constituency.