RAJESH KUMAR Vs. PREMCHAND

JUDGEMENT

(1.) The present revision has been filed under section 26(2) of the M. P. Municipalities Act, 1961 read with M. P. Municipalities (Election of Vice President) Rules, 1998.

(2.) The applicant, in the present case, was a candidate for the post of Vice President, Nagar Panchayat, Soyatkala, Distt. Shajapur and the respondent No. 1 was also a candidate in respect of the aforesaid election. The election took place on 16-1-2010 and out of total 16 votes, the applicant received 7 votes and the respondent No. 1 also received 7 votes. The Presiding Officer by drawing a lot declared the petitioner as elected in respect of the post of Vice President, Nagar Panchayat, Soyatkala, on 16-1-2010 itself. The respondent No. 1 being aggrieved by the declaration of result declaring the applicant as Vice President of the Nagar Panchayat, preferred an election petition under section 20 of the M. P. Municipalities Act, 1961 and various grounds were raised before the Distt. Judge, Susner. The aforesaid election petition was registered as Case No. 2/10 and after framing the issues and after appreciating the evidence adduced, the Presiding Officer has allowed the election petition on 18-9-2010. The election petition filed by the respondent No. 1 was allowed and it was held that one vote was wrongly declared as invalid and the meeting in which draw of lot took place was also an invalid meeting. The applicant being aggrieved by the order passed in election petition dt. 15-2-2010 came up before this Court by filing a Civil Revision and the same was allowed by an order dt. 23-9-2010 passed in C.R. No. 223/2010 Rajesh Kumar vs. Premchand and another. It has also been stated that the revision was allowed and the matter was remanded back to the trial Court to pass a fresh order ignoring the statement of Mrs. Usha Singh, the then Tehsildar who was the Election Officer and the trial Court was also directed to pass an appropriate order regarding necessity of opening of sealed cover to examine the Validity of two invalid votes. The matter after remand was again considered by the trial Court and by an order dt. 7-1-2011, the trial Court has directed opening of the sealed cover containing ballot papers and thereafter a final order has been passed on 17-1-2011 allowing the election petition. The election of the present applicant has been declared as void and the respondent No. 1 has been declared as elected Vice President of Nagar Panchayat, Soyatkala. Learned counsel appearing for the applicant has vehemently argued before this Court that in the earlier round of litigation after appreciating the entire evidence on record, the learned Single Judge has categorically directed the trial Court to pass fresh order after ignoring the statement of Mrs. Usha Singh, Tehsildar, who was Election Officer and who was examined on 29-4-2010. Contention of the learned senior counsel is that while passing the impugned order dt. 17-1-2011, the trial Court has once again relied upon the earlier statement of Mrs. Usha Singh in spite of the fact that the deposition of Mrs. Usha Singh was set aside by this Court in the earlier round of litigation. Learned sr. counsel has further contended that the order passed by the Election Tribunal is bad in law and deserves to be set aside. Learned Sr. counsel has also argued before this Court that the trial Court has committed an error by passing an order dt. 7-1-2011 by directing reopening of the envelope containing ballot papers and the same is contrary to the law laid down by the Apex Court in the case of Kattinokkula Murali Krishna vs. Veeramalla Koteswara Rao, 2010 AIR(SC) 24. He has vehemently argued before this Court that without appreciating the evidence on record in a mechanical manner an order was passed on 7-1-2011 directing opening of the sealed cover which was containing the ballot papers and in a mechanical manner recounting of votes has also been ordered that too by relying upon the statement of Mrs. Usha Singh. Learned senior counsel has prayed for quashing of the order dt. 7-1-2011 as well as order dt. 17-1-2011 passed by the Election Tribunal. Learned Sr. counsel has also vehemently argued before this Court that the Election Tribunal has erred in law in directing recounting of votes and has also erred in law in declaring the invalid vote as valid vote inspite of the fact that it was containing an additional mark other than the cross mark. He has referred to Rule 10 and 11 of the M. P. Municipalities (Election of Vice President) Rules, 1998 and his contention is that in case the ballot papers contains any other mark other than the X mark on the ballot paper, the same has to be declared as invalid because it discloses the identity of the voter. Learned senior counsel has placed reliance upon the judgment delivered by this Court in the case of Ravi Thakur vs. Shivshankar Patel and others, 1997 AIR(MP) 136 and he has prayed for quashing of order dt. 7-1-2011 passed by the Election Tribunal.

(3.) Learned counsel for the respondent No. 1 has placed reliance upon a judgment delivered by the Apex Court in the case of S. Sivaswami vs. V. Malaikannan and others, 1983 AIR(SC) 1293 and his contention is that a ballot paper cannot be rejected only because some additional mark indicative of identity of candidate for whom the vote has been cast is in existence on the ballot paper. Learned counsel for the respondent No. 1 has vehemently argued before this Court that the election Tribunal while passing the impugned order though has referred to the statement of Mrs. Usha Singh, has not relied upon the statement of Mrs. Usha Singh while passing the final order. The contention of the learned counsel is that the Election Tribunal after examining the ballot paper in question and after taking into account, the statement of other witnesses has given a categoric finding that one of the votes was wrongly declared as invalid and it was in fact a vote casted in favour of non applicant No. 1. He has prayed for dismissal of the present revision.