PALA SINGH Vs. NATHI SINGH AND ORS.

JUDGEMENT

(1.) IN the election for primary members of Panchayat Samiti Block, Palwal, in district Gurgaon, it appears that 16 members were to be elected. The election took, place on August 20, 1961. Pala Singh Petitioner was one of those who were elected and Nathi Singh, Respondent 1, who contested the election, lost it. In his case the returning officer found four ballot papers invalid leaving 9 valid votes for him. He then found a number of other candidates, including the Petitioner, having equal number of votes, that is to say 10, and consequently according to Rule 16 (9)(b) of the Punjab Panchayat Samitis (Primary Members) Election Rules, 1961, for five candidates Hots were drawn and the Petitioner was the fifth to be elected in this manner, four others having been elected earlier to him. It is obvious that if four -ballot papers of Respondent I had not been rejected as invalid, he would have had thirteen votes, in which case lots would only have been necessary for four remaining members and not five. So that in that event the Petitioner would have had no chance of being elected to the Panchayat Samiti. Subsequently When the Panchayat Samiti was constituted the Petitioner was elected its Chairman. For the constitution of the Panchayat Samiti certain members were co -opted. Afterwards the election of members from the Samiti for the Zila Parishad took place.

(2.) NO other material has been placed before this Court but it appears from the order of Respondent 2 that "the Returning Officer declared these ballot -papers to be invalid on the ground that there is no marking in column 4 (meant for the purpose)". A number of grounds were taken in the election petition by Respondent 1 but only one survived before Respondent 2 and that is the objection as referred to above. Respondent 2, after considering some cases cited before him, came to the conclusion that what is to be seen is the intention of the voter and if that has been clearly and unambiguously Indicated, a ballot -paper is not to be rejected on mere consideration that the mark required to be made on it has not been made exactly at the place at which it should have been made. Having come to this conclusion the learned Authority found that the Returning Officer was wrong in rejecting the four ballot -papers of Respondent 1. Having found this he proceeded not only to declare that the Petitioner had not been elected but also proceeded to declare Respondent 1 elected and ordered setting aside of all elections taking place after the election of the Panchayat Samiti and directed re -election of the same. The order of the learned Authority is of January 2, 1962. It is this order that is impugned by the Petitioner and there are two main grounds, (a) that Section 121 of Punjab Act No. 3 of 1961 is constitutionally invalid being vague and indefinite and conferring uncontrolled and unguided power on the Authority trying the election petition, and (b) that the approach of Respondent 2 is incorrect in law and there is a patent error on the face of the record inasmuch as Respondent 2 has ignored Rule 17 of the Punjab Panchayat Samitis (Primary Members) Election Rules, 1961, in not adverting to the fact that mark (X) having been placed on the symbol of respondent 1, from the ballot -papers the voters were immediately identifiable in this manner that each one of them could go and inform Respondent 1 that if he wanted to satisfy himself about the support given so him or otherwise, he could see the ballot -box containing ballot -papers with mark (X) on the symbol.

(3.) THE learned Judges were of the opinion that the expression 'failure of justice' was far too vague in its meaning and scope and the legislature thereby did not lay down either the guiding principle or policy for the prescribed authority, which was, therefore, left by this vague power to proceed at its sweet will and be able to discriminate if it should wish to do so. In Section 101 of this very Act rule -making power has been given to the Government and Sub -section (2)(c) of this section says that "in particular and without prejudice to the generality of the foregoing power, Government may make rules * * * (c) regulating the procedure of election, suspension or removal of the office -holders of the Gram Panchayat, and Adalti Panchayat and the settlement of election disputes", and even in this rule -making power no definite, detailed and specific power has been taken to prescribe grounds for invalidating an election as a guide to the Prescribed Authority acting under Section 8 of this Act. It appears that no rules were actually made in this respect as any guide to the Prescribed Authority. It was in these circumstances that the learned Judges came to the conclusion as above in regard to the power in the Prescribed Authority under Section 8(2)(a) of the said Act.