RAMJILAL YADAV Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The petitioner has filed the present writ petition, questioning the vires of the provisions, contained under Rules 49, 51, 52 and 59(14) of the Rajasthan Panchayati Raj (Election) Rules, 1994 (hereinafter called, "the Election Rules of 1994").

(2.) It is true that the petitioner has an effective alternative remedy by way of filing an election petition, as provided under Section 43 of Rajasthan Panchayati Raj Act read with Chapter XIII of the Election Rules of 1994. The basic question involved in the present writ petition, is that if the aforesaid rules are held to be ultra vires, then, of course, instead of invoking statutory provisions, contained under Section 43 of Rajasthan Panchayati Raj Act read with Chapter XIII of the Election Rules of 1994, by way of filing an election petition challenging the declaration of result before the Election Tribunal, the petitioner is entitled to file the present writ petition, whereas, if it is found that the aforesaid rules, are intra vires, then, the petitioner is not entitled to file the present writ petition but to seek his appropriate remedy by filing an election petition as envisaged under Section 43 of Rajasthan Panchayati Raj Act read with Chapter-XIII of the Election Rules of 1994.

(3.) The main thrust of the argument of learned counsel for the petitioner, Sri Rajendra Soni while challenging the vires of Rules 49, 51, 52 and 59(14), before me, is that since there is no provision for counting of "tendered ballot paper", therefore, the Election Rules of 1994, mentioned hereinabove, are to be held to be ultra vires. It is submitted by the learned counsel for the petitioner that in the present case, since there is no provision for counting of "tendered ballot paper", hence the Returning Officer refused to count three tendered votes and declared the result on equality of votes by drawing of lot which has materially affected the result of returned candidate. According to Sri Soni, if three tendered votes would have been counted, the result would have been otherwise.