SULAR MAHTO Vs. BASUDEO MODI

JUDGEMENT

(1.) This is an application to quash the order of the Election Tribunal dated 8-8-1962 setting aside the election of the petitioner as the Mukhia of Chandwara Gram Panchayat and directing the holding of a fresh election. The impugned election was held on 27-6-1960 from 8 a.m. till about 4.45 p.m. The petitioner was found to have polled 786 valid votes. Opposite party No. 1 polled 301 votes, opposite party No. 2, 201 votes and opposite party No. 3, 275 voles. The petitioner was, therefore, declared to be the duly elected Mukhia of the Panchayat. Thereupon, opposite party No. 1 filed an election petition before the Tribunal challenging the validity of the election on two grounds: (1) that some of the important rules relating to the election of Mukhias of Gram Panchayat were not followed, and (2) that illegal practices were adopted by the petitioner. The Tribunal round as a fact that the petitioner allowed the use of a jeep for the purpose of carrying his voters, which is one of the corrupt or illegal practices described in para 6 of Part I of Schedule 1 of the Bihar Panchayat Election Rules, 1959. It also found that there were irregularities regarding the publication of the election programme and the voter's list and in the conduct of the poll in consequence of which about one thousand voters who were standing outside the enclosure were denied their right to vote. It further held that these irregularties in the conduct of the election were material and they affected the result of the election. Hence it set aside the same.

(2.) As the order of the Tribunal is a quasi judicial order, this Court's power of interference is limited to jurisdictional matters only or to errors of law apparent on the face of the record. The finding that some of the voters were carried by the petitioner in his jeep and that consequently he was guilty of an illegal practice as described in para 6 of Part I of Schedule I of the Election Rules is a pure finding of fact based on evidence on record Hence, it cannot be interfered with in exercise of our extraordinary jurisdiction. The important point urged by Mr. Brajkishore Prasad No. 2 for the petitioner is that the finding that the results of the election were materially affected by the alleged irregularities in the publication of the electoral roll or in holding the election was based on no evidence & that consequently that was an error of law apparent on the face of the record. He relied on the decision of the Supreme Court in Vashist Narain Sharma v. Dev Chandra, AIR 1954 SC 513 where it was held that though it may be very difficult to show that an irregularity materially affected the election, nevertheless in view of the statutory provision, the person challenging the election has to prove it satisfactorily. This decision has been followed in subsequent Patna decisions including Karu Lall v. Fida Hussain, AIR 1960 Pal 556 and Mani Lal Yadava v. Budhinath Jha Kairava, AIR 1962 Pat 18. There is no doubt that the jurisdiction of the Tribunal to set aside an election on the ground of any irregularity in the conduct of the election arises only if there is a clear finding that such irregularity materially affected the results of the election as provided in Rule 82 (1) of the Gram Panchayat Election Rules. But the question for consideration by this Court at present is whether there was some evidence, however slender it may be, for the Court to hold that the results were materially affected by such irregularities, or else whether in law there was no evidence whatsoever and the finding of the Tribunal in this respect was based on some guess work or surmises. This Court is not sitting as an appellate Court to re-assess the evidence adduced before the Tribunal or to take a different view from that taken by the Tribunal on this question.

(3.) The witnesses examined by the opposite party stated that the polling commenced at 8.30 a. m., though under the rules it ought to have commenced at 8 a. m. (see Rule 30) and that the Presiding officer assured the witnesses for the opposite party No. 1 at the commencement of the poll that the polling will continue till late so that all the voters will be allowed to cast their votes. There was also evidence to the effect that after 4 p. m. the Presiding Officer refused to allow any person to vote, though about a thousand voters were standing outside the enclosure. The petitioner's witnesses, however, disputed the statements of fact and gave evidence before the Tribunal to the effect that the polling commenced at 8 a. m. and that all the voters who were collected at the polling booth were taken inside and were allowed to vote. But the Tribunal believed the evidence of the witnesses of opposite party No. 1 and held that on account of late commencement of the election and the refusal of the Presiding officer to permit nearly thousand voters to vote, a large number of voters had to come away disappointed after 4 p.m.. though they were standing just outside the enclosure. It is true that the Tribunal has not expressly stated that these thousand voters would have voted for opposite party No. 1 and that consequently the results of the election were materially affected by their being denied the right to vote, but the circumstances under which they were denied their right to vote, as held by the Tribunal, would suffice for it to infer reasonably that they would have voted for opposite party No. 1. His witnesses all stated that it was on behalf of opposite party No. 1 that requests were made to the Presiding Officer to allow these people to vote but that the Presiding Officer refused. Mr. Brajkishore Prasad, however, urged that from this circumstance alone the Tribunal was not justified in law in inferring that those thousand voters would have voted for opposite party No. 1 if they had been permitted to vote. This is essentially a question of inference from the proved facts and circumstances of the case. Once it is held that thousand voters were standing outside the enclosure, that notwithstanding the requests of opposite party No. 1's men that they should be permitted to vote the Presiding Officer refused to allow them to vote, and it is further found that the petitioner was all along asserting that there was no such assemblage of thousand persons there and that all the persons assembled at the polling booth were permitted to vote, it is open to a Court of fact to infer that those thousand persons would not have voted for the petitioner. It is open to a Court of fact to draw such an inference from those facts and circumstances, though another Court of fact sitting as an appellate Court may not agree with its findings. In any case, it cannot be held to be a finding based on no evidence whatsoever so as to make it an error of law apparent on the face of the record justifying our interference at this stage.