RAMDAS SHEORAMJI Vs. PANJAB GOVINDRAOJI

JUDGEMENT

(1.) VILLAGE Jaola Shahapur in taluq Achalpur, district Amravati has been divided into four wards for the purposes of Village Panchayat Ward No. 4 with which we are concerned in this petition is a double-member constituency. The elections to the Village Panchayat in this village were held on 11-4-1967. The petitioner and the respondents Nos. 1 to 3 were the four candidates for election to the Village Panchayat from Ward No. 4. Two members were to be elected from this constituency. As a result of the counting on 13th April, 1667 it was found that the respondent No. 2 Ganeshrao Malluji secured 92 votes, the petitioner and the respondent No. 1 secured 87 votes each and the respondent No. 3 Hiraman secured 72 votes. Being a double-member constituency, the respondent No. 2 Ganeshrao who secured largest number of votes was first declared elected. So as to secure the second seat, there was a tie between the petitioner and the respondent No. 1. each of them having secured 87 votes. Since the petitioner and the respondent No. 1 secured equal votes, the Returning Officer acted under Rule 34, Sub-rule (3) of the Bombay Village Panchayats Rules, 1959 and lots were drawn as a result of which the petitioner was declared elected. The respondent No. 1, therefore, filed an election petition under Section 15 of the Bombay Village Panchayats Act, 1958.

(2.) IT was alleged on behalf of the respondent No. 1 Panjabrao that voter by name Bainabai Kanekar voted in both the wards Nos. 1 and 4 and therefore, both of her votes were to be declared void and since in Ward No, 4 Bainabai had voted for the present petitioner, that vote should be excluded from the number of votes he obtained as a result of which the respondent No. 1 would get 87 votes, that is, one vote more than the votes polled by the petitioner. The votes from Wards Nos. 1 and 4 were, therefore, scrutinised by the Second Civil Judge, Achalpur before whom the election petition was filed and on scrutiny he found that the said Bainabai had voted both in Ward No. 1 as well as in Ward No. 4. Bainabai's name was included in the voters' list of Ward No. 1 at serial No. 155 and in the voters' list of Ward No. 4 at serial No. 13. The learned Civil Judge found that her name appeared in the voters' lists of Wards Nos. 1 and 4, that she was issued ballot papers in both these wards and that she voted in both these wards. It was further found by him that in Ward No. 4 she had cast the vote in favour of the present petitioner and, therefore, held that the petitioner's votes should be counted as 86 instead of 87 after excluding the vote of Bainabai and the respondent No. 1's votes would be 87 as already declared. On these findings the learned Civil Judge set aside the election of the present petitioner and declared the respondent No. 1 Panjabrao as elected to the Village Panchayat from Ward No. 4. This decision is challenged by the present petitioner.

(3.) IN deciding this question, the learned Civil Judge placed reliance on the provisions of Section 62 of the Representation of the People Act, 1951, and particularly on Clause (3) which states that: