RAKHA RAM Vs. A R DARSHI AND OTHERS

JUDGEMENT

(1.) Election to ward No. 7 of the Municipal Committee, Urmar Tanda, was held on June 10, 1979. Rakha Ram, petitioner, polled 268 votes against 267 votes polled by his rival candidate, Dev Raj, respondent No. 2. The petitioner was declared elected as a Municipal Commissioner by a margin of one vote. Dissatisfied Dev Raj, the defeated candidate, filed an election petition under rule 52 of the Punjab Municipal Rules, 1952 (for short 'the Rules') against the election of the petitioner. In the election petition, it was inter alia pleaded that Kulwant Kaur wife of Sadhu Singh was residing in those days at Jhansi and Rakha Ram managed to get her vote polled by impersonation. Ballot paper No. 19347 did not bear the impression of the marking seal as prescribed under the rules. It bore a distinction mark with blue ink. This vote was polled in favour of the petitioner. The Presiding Officer wrongly counted this vote as a valid vote. There were other points of challenge to the election of the petitioner raised in the election petition but it is not necessary to recapitulate them because the impugned order nullifying the election is not based on them. These allegations have not been accepted to have been proved. The election petition was entrusted for disposal to Shri A.R. Darshi, Executive Magistrate, Hoshiarpur, who had been appointed a Commission by the State Government under section 247 of the Punjab Municipal Act, 1911 (for short 'the Act').

(2.) After recording the evidence of the parties and hearing their learned counsel, the Commission came to the conclusion that two valid votes had been cast in favour of the petitioner. Vote No. 19347 was invalid vote and the credit of the same should not have been given to the petitioner. Kulwant Kaur had not cast her vote in the elections and somebody else had impersonated her and cast vote in favour of Rakha Ram. The Commission excluded one vote from the votes polled in favour of Dev Raj holding that the same had been polled as a result of impersonation of Sheela Devi who was actually dead on the date of election. As a result he took out two votes from the total 268 votes by Rakha Ram, petitioner, and one vote from the total 267 votes polled by Dev Raj, respondent, and concluded that both the candidates had polled equal number of votes i.e. 266 votes each. He set aside the election of the petitioner and recommended that in accordance with the provisions of clause (b) of rule 40 of the Rules the result of the election should be decided between these two candidates by drawing lot. Aggrieved by this order, Rakha Ram filed the present writ petition.

(3.) It has been contended by Shri R.C. Setia, Advocate, the learned counsel for the petitioner, that the onus to prove that the election of a returned candidate is void because it has been effected by a material irregularity is on the election-petitioner. This onus has to be discharged by him by independent, reliable and cogent evidence.