AJAIB SINGH Vs. MOHINDER SINGH AND ANOTHERS

JUDGEMENT

(1.) THIS is a letters patent appeal under clause X of the Letters Patent, challenging the judgment of a learned Single Judge, dated December 17, 1975, by which the Writ petition of Mohinder Singh, Respondent, was accepted.

(2.) THE facts, in brief, are that eighteen members of the Panchayat Samiti, Samrala (hereinafter to be called the Samiti) were elected in accordance with the provisions of the Punjab Panchayat Samitis and Zila Parishads Act, 1961 (hereinafter to be called the Act). A meeting of the Samiti for the purpose of co -opting Scheduled Cast/Scheduled Tribes and women members, as required under Section 5(2) (cc) (iii) of the Act was held on August 7, 1975, under the Presidentship of the Block Development and Panchayat Officer. All the eighteen members cast their votes. The Presiding Officer rejected one ballot paper cast in favour of Mohinder Singh, Respondent, on the ground that the voter had not put a cross mark (X) against the name of the Respondent, but had put only a straight line as a result the Appellant was declared as eo -opted member of the Samiti from the backward classes. This decision of the Presiding Officer and co -option of the Appellant as a member of the Samiti was challenged by means of a writ petition under Articles 226 and 227 of the Constitution of India out of which the present letters patent appeal has arisen. The learned Single Judge, after hearing the counsel for both the parties, came to the conclusion that the mark on the ballot paper, in question, did not " lead to the identification of a voter or an elector " and, therefore, set aside the decision of the Presiding Officer rejecting the ballot paper. It was further held that if that ballot paper being valid was counted in favour of the Respondent both the Respondent and the Appellant will have equal number of votes and as such, a direction was issued to the Presiding Officer to draw lots in the presence of the members of the Samiti and the candidates and to declare the result in the light of the draw. In the writ petition, a preliminary objection had been taken by the counsel for the Appellant that as the writ Petitioner had not availed of the remedy of an election petition, the writ petition was not maintainable. This contention did not find favour with the learned Single Judge. The Learned Counsel for the Appellant has raised the following contentions:

(3.) IN support of his second contention that the ballot paper was rightly rejected by the Presiding Officer, the Learned Counsel for the Appellant has placed reliance on Sub -rule (4) of the Rule 7 of the Rules, which is reproduced below: