DHAN SINGH Vs. LAKSHMI NARAIN AND OTHERS

JUDGEMENT

(1.) DHAN Singh appellant, and Iakshmi Narain, respondent No. 1 contested the election to the Chairmanship of the Market Committee, Palwal. There were nine members of the Market Committee, who had to vote in this election. All of them took part and the Sub -Divisional Officer (Civil) Palwal, respondent No. 2, who was the Presiding Officer, declared the appellant as elected on the ground that he had secured five votes as against four by respondent No. 1. Since no election petition was provided under the Punjab Market Committee Chairman and Vice -Chairman (Election) Rules, Lakshmi Narain filed a writ petition under Articles 226 and 227 of the Constitution challenging this election on the ground that one of the votes was invalid and should not have been counted, because the voter had put the cross 'X' against the names of both the candidates in an ambiguous manner. Moreover, the said mark 'X' was encircled, from which the voter could be easily identified. According to respondent No. 1, an objection to this effect had been raised before the Presiding Officer, but he had paid no heed to it and counted that vote in favour of the appellant and declared him as elected.

(2.) THE writ petition was heard by Mahajan J. He remarked that the Presiding Officer had not filed any affidavit controverting the allegation of Lakshmi Naran that the objection with regard to the validity of the ballot paper was raised before him. The affidavit of the Deputy Commissioner was considered to be of no consequence by the learned Judge, because he was not present at the spot. As regards the affidavit filed by the appellant, the learned judge was of the opinion that he was naturally interested to support his own cause and therefore no reliance could be placed on it. In that situation the learned judge decided to proceed on the basis that the objection to the ballot paper was raised before the Presiding Officer. He then himself examined the ballot paper in dispute and came to the conclusion that there could be no manner of doubt that it should have been rejected as invalid in accordance with Rule 9 of the election rules, because the cross on the same had been placed at such a place that it could not with any certainty be said for whom the elector cast his vote. The learned judge further held that Rule 9, which runs as under, being a mandatory provision, there was no option with the Presiding Officer, but to reject the ballot paper: -

(3.) WE have examined the record of this case and we find that the affidavit of the Sub -Divisional Officer is not on the file. Under these circumstances there is no reason to disturb the finding of the learned judge on this point.