DIGAMBER PANDURANG SAWANT Vs. AHMED APPA KHEDEKAR

JUDGEMENT

(1.) [His Lordship after stating the facts, proceeded]. In support of the 1st contention, Mr. Patankar relied upon Sub -rule (2) of Rule 33 which we have already quoted above.')' Now, it is true that this sub -rule directly provides that the decision of the Returning Officer as to the validity of a ballot paper contained in a ballot box 'shall be final'. But in this connection it requires to be noticed that results of election declared by the Returning Officer can be canvassed in an election petition filed under Section 15 of the Act. That section provides: 15. (1) If the validity of any election of a member of a panchayat is brought in question by any candidate at such election... such candidate... may, at any time within fifteen days after the date of the declaration of the result of the election, apply to the Civil Judge (Junior Division) having ordinary jurisdiction in the area within which the election has been or should have been held for the determination of such question. (2) An enquiry shall thereupon be held by the Judge... (3) ... (4) ... (5)(a) ...(b) If, in any case to which Clause (a) does not apply, the validity of an election is in dispute between two or more candidates, the Judge shall after a scrutiny and computation of the votes recorded in favour of each candidate, declare the candidate who is found to have the greatest number of valid votes in his favour to have been duly elected:... The submission of Mr. Patankar amounts to this that, in respect of ballot papers declared by a Returning Officer to be invalid, the Civil Judge as election tribunal has, in spite of the provisions in Clause (b) of Sub -section (5) of Section 15, no jurisdiction to consider the correctness or otherwise of the decision of the Returning Officer. The jurisdiction that is conferred by this statutory provision in the Act on the Civil Judge as election tribunal can in law never be curtailed by any provisions in the Rules made under the Act. It is trite that the question of the validity of a ballot paper is one of the questions which may be raised in an election petition, and such a question should be triable by an election tribunal. The ballot papers declared invalid may be valid and may help, on a recount of votes, a candidate to secure larger votes than counted and ascertained by a Returning Officer at initial stages. The provision in Clause (b) of Sub -section (5) of Section 15 directly invests the Civil Judge as election tribunal with the power to scrutinise and compute the votes recorded in favour of each candidate. There is nothing in the Act to restrict and circumscribe the ordinary meaning of the expression 'scrutiny and computation' contained in Clause (b) of Sub -section Section (J). Power to scrutinize votes creates jurisdiction to decide the validity or otherwise of ballot papers. It is, therefore, difficult to accept the contention that the learned Judge had no jurisdiction to decide that the 7 ballot papers which were included in the count made by the Returning Officer as valid papers were in fact, for reasons recorded by the learned Judge, invalid ballot papers on which reliance could not be placed by any of the candidates. The first contention, therefore, fails.

(2.) [The rest of the judgment is not material to this report.]