NIRMAL SINGH KHAZAN CHAND Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS petition under Articles 226 and 227 of the Constitution is directed against the order of Shri Y. P. Raheja, Magistrate, 1st Class, Hoshiarpur, and Illaqa magistrate for Police Station Hariana, dated 11-11-1964 setting aside the petitioner's election as Sarpanch of Gram Panchayat Bulhowal. The election had been held on 6-1-1964 in which Nirmal Singh had defeated Jacob Naru by a margin of 14 votes. The election petition presented by Jacob Naru the defeated candidate contained a number of allegations giving rise to nearly 11 issue for trial, but the controversy in the present proceedings centres round only issue No. 10 which is in the following terms :

(2.) THE learned counsel for the petitioners has strongly urged that the view taken by the prescribed authority is contrary to law. Our attention has been drawn to a recent decision of D. K. Mahajan, J. in Sultan Singh v. Man Singh, 1965 Cur LJ 140 : (AIR 1965 Punj 374) that the direction to mark the ballot paper as contained in Rule 16 is not mandatory and it is open to the Director to give such a direction or to desist from doing so. It may, however, be pointed out that in the reported case no direction had been issued under Rule 16, and indeed on behalf of the respondent No. 5 it has been contended with a certain amount of force that in the case in hand the prescribed authority has come to a finding that such a direction was in fact issued, with the result that non-compliance with the direction actually issued would take the case out of the ratio decidendi of the reported decision. It is further pointed out by the respondent, that according to Mahajan, J. , also, once a direction is given under Rule 16, then a ballot paper which does not bear the mark required by this rule has to be rejected under Rule 34 (b ). Rule 34 (b), according to the respondent's contention, both in form and substance, gives a mandate which is peremptory and it is not open to the Returning Officer to accept ballot paper which does not contain the official mark in accordance with the direction.

(3.) IT is necessary at this stage to reproduce Rule 16 and 34 (b) :