BEGARAM Vs. COLLECTOR SIKAR

JUDGEMENT

(1.) THIS is a petition under Art. 226 of the Constitution by one Begaram against an order of the Collector Sikar setting aside his election as Sarpanch of the Dinarpura Panchayat on an election petition filed against him by Jiwanram respondent No. 2, The petition was contested by Jiwanram. 2. Bega Ram was elected Sarpanch of Panchayat Dinarpara at an election held on 23. 1. 59- On the date of election an objection was taken that he did not fulfil the qualification of literacy prescribed under sec. 13 (1) of the Rajasthan Panchayat Act (hereinafter referred to as the Act ). The Returning Officer thereupon tested the ability of the petitioner to read and write Hindi as required by R. 8 of the Panchayat Election Rules (hereinafter referred to as the Rules) and gave a decision that he was duly qualified in that behalf. Thereafter polling took place and Begaram was declared elected as Sarpanch, having defeated the rival candidate Jiwanram by 10 votes. 3. Against the election of the petitioner Jiwanram filed an election petition under R. 19 of the Rules. The petition was forwarded by the Collector to the Sub Divisional Officer for inquiry and report. The S. D. O. reported that the election was invalid. On receipt of the report the Collector heard the parties and passed the impugned order setting aside the election. Against this order the present writ petition has been filed. 4. The Collector held the election to be invalid on three grounds, namely, that the petitioner was not able to read and write Hindi, that 8 voters voted twice for him and that polling was closed at 3. 30 p. m. instead of being continued till 4 p. m. and it was possible that some voters might have come to vote after 3. 30 p. m. and might have been precluded from voting. The election however cannot be set aside on the last two grounds. Only 8 persons were proved to have voted twice for the petitioner, but he won by 10 votes. THIS irregularity therefore did not substantially influence the result of the election. It was not found by the Collector that any voter was in fact precluded from voting because polling was closed at 3. 30 p. m. It cannot therefore be said that the result of the election was substantially influenced by closing the polling at 3. 30 p. m. 5. With regard to the first ground the petitioner's objections are as follows: (1) that the standard by which the ability of the petitioner to read and write was tested was much higher than laid down by the Legislature under sec. 13 (1) of the Act. (2) that a perusal of what the petitioner wrote before the Returning Officer to his dictation shows that he is able to write Hindi. (3) that the passage which he was asked to read by the S. D. O. is in very difficult Hindi and requires a higher degree of proficiency to read it than that laid down under the Act. In the alternative it was urged that the standard of literacy laid down in sec. 13 (1) of the Act is vague and is consequently hit by Art. 14 of the Constitution being susceptible of discriminatory interpretation. 6. On behalf of the contesting respondent reliance was placed on a decision of the Division Bench of this Court in Ismail Vs. Rajasthan State (1) in which the provisions of Rule 13 (1) framed under the Rajasthan Town Municipalities Act 1951 came up for consideration. THIS rule is worded as follows : " Subject to the disqualifications mentioned in sec. 12 and sub-secs. (3) and (6) of sec. 19 of the Act, every person who is on the roll and is also capable of reading and writing Hindi or is otherwise literate, shall be qualified to be a candidate. " 7. So far as the test of literacy is concerned these words are similar to the words used in sec. 13 of the Act, which uses the words "able to read and write in Hindi". It was held by Division Bench which decided the above case that R. 13 (1) provides a simple qualification of the reading and writing Hindi or showing that a candidate is otherwise literate, and it is not so vague that it must be struck down. It was observed that it would be difficult to provide any test of literacy without leaving some discretion in the officer who is to take that test. At page 322 it was observed that the question whether the petitioner was capable of reading and writing Hindi or whether he was otherwise literate, is one of fact and is no: for this Court to determine such a question of fact in its extra ordinary jurisdiction. On the strength of this observation it is argued that it is not open to this Court to determine objections 1, 2 and 3 raised on behalf of the petitioner. 8. In Ismail't case (1) the Returning Officer had held that the petitioner was neither capable of reading and writing Hindi nor was otherwise literate. The judgment does not show that the writing made by the petitioner or the passage which he was called upon to read were before this Court in that case. In the present case the writing made by the petitioner before the Returning Officer as well as the passage which he was called upon to read before the S. D. O. are both before this Court. Further it was specifically mentioned in the judgment in Ismail's case that it was not alleged in that case by the petitioner that he was tested by applying a high standard of literacy as has been alleged in this case. Ismail's case is thus distinguishable on facts from the present case. 9. The language used in Rule 13 (1) framed under the Town Municipalities Act 1951 being similar to the language used in sec. 13 (1) of the Act the decision in Ismail's case that the test laid down u|nder R. 13 was not vague is applicable to the present case. Apart from being bound by the decision on this point I am in respectful agreement with it. 10. Now the writing made by the petitioner before the Returning Officer is before this Court, From this writing the Returning Officer was satisfied that the petitioner was able to write Hindi. But the S. D. O. , with whom the Collector agreed, was of the opinion on the basis of this very writing that he was not able to write Hindi. THIS Court is bound to look at the writing and to say whether or not the petitioner fulfils the standard prescribed under sec. 13 (1) for the ability of a candidate to write Hindi. If this Court cannot say that by looking at the writing then in my opinion it would be idle for this Court to say that the standard is not vague. If the Court finds from the writing that the petitioner fulfils the necessary requirement of the law then there is an apparent error in the order of the Collector which must be set aside upon a writ of certiorari. 11. The same argument is applicable to the ability of the petitioner to read Hindi. The passage which the Returning Officer asked him to read is not before this Court. But the passages which the S. D. O. asked the petitioner to read are before this Court. The report of the S. D. O. as to the mistakes he made in reading the passages is also before this Court. If it appears that these passages require a higher degree of proficiency than is prescribed by the Legislature then there would be an apparent error in the order of the Collector holding that the petitioner is not able to read Hindi within the meaning of the Act. 12. An examination of the writing made by the petitioner before the Returning Officer shows that he made the following errors : ************* He was able to write correctly simple words like vkt] Hkkjr] lc dks leku- He made mistakes in putting Matras correctly. Instead of gs he wrote gs Instead of D;k he wrote D; Two words he omitted. He did not know the word vf/kdkj at all. He cried to reproduce phonetically what was dictated and wrote instead nsgfydk- For fnyyh he wrote nhyyh For ;g he wrote ;s- For ekywe he wrote ekye- For dlesa he wrote {kesa- Now what the Act prescribes in my opinion is bare literacy in Hindi. It is obvious from the writing made by the petitioner that he fulfils the qualification of bare literacy so far as writing in Hindi is concerned. THIS writing shows that if he wishes to convey some message he can do so in writing. That is all that is required of him by law. The petitioner signed his name as csxjke before the Returning Officer. He usually signs it as csxjke as is clear from his signa-tures on the affidavit. It should not be forgotten that a man whose ability to write is being tested unexpected at the time of election is bound to become nervous. No adverse inference should be drawn on the basis of stray mistakes and omissions. For example the petitioner wrote Hkkjr correctly in the beginning. But when he was writing it for the second time he wrote 'r' and 't' very closely and he wrote 't' again as the earlier 't' has got joined with 'r'. 13. Coming now to the ability of the petitioner to read Hindi, he was asked to read the name of Jiwanram on Ex. D. 2. He read as 'givanram'. I have examined the writting. th looks like ************* 14. The second passage which the petitioner was called upon to read runs as follows (Ex. P. 4) : *** The report of the S. D. O. is that the petitioner read it haltingly and made mistakes in doing so and that he was unable to say what the passage meant. Now this passage is written in difficult Hindi and requires a high degree of proficiency in order to be able to read it fluently and to understand it. As I have held above sec. 13 (1) of the Act only prescribed bare literacy in Hindi. Inability to read the above passage fluently and to understand it would not show that the petitioner is not able to read Hindi within the meaning of S. 13 (1) of the Act. 15. On behalf of the respondent it was argued that the intention of the Legislature is that the Sarpanch should be literate enough to be able to read and understand without assistance the provisions of the Rajasthan Panchayat Act, the Rules framed under the Act and the various circulars issued from time to time by the Panchayat Department of the State in Hindi. I have perused the Hindi version of the Act and Rules as well as various circulars, instructions etc. issued from time to time. They are contained in Rajasthan Panchayat Practice a publication issued by the Rajasthan Law Weekly. A high degree of proficiency in Hindi is needed to understand them. I am sure that in the existing state of literacy in Rajasthan it could not have been the intention of the framers of the Rajasthan Panchayat Act to prescribe such a high degree of literacy. If that had been the intention they would have used appropriate language to indicate higher degree of proficiency. 16. Another argument on behalf of the respondent was that by Hindi is meant Hindi of the standard used in official publications issued for the benefit of the general public. Such publications should undoubtedly be issued in very simple language which the general public can understand. But if they are not issued in such language the standard of proficiency needed for understanding such literature cannot be imported in interpreting the provisions of sec. 13 (1) of the Act. I am of the opinion that "hindi" as used in sec. 13 of the Act does not mean literary Hindi only but includes the various dialects spoken in different parts of Rajasthan. These dialects are all forms of Hindi. If a person can read and write one of the local dialects he would be duly qualified to be elected as a Sarpanch or Upsarpanch even though he may not be conversant with literary Hindi or Hindi used in Govt. publications. 17. I accordingly find that the order of the Collector setting aside the election of the petitioner is vitiated by errors apparent on the face. The finding that the petitioner is not able to write Hindi is erroneous and is set aside. It is held that he is able to write Hindi within the meaning of sec. 13 (1) of the Act. The finding that he is not able to read Hindi is also set aside. It is held that the standard by which the petitioner's ability to read Hindi was tested was much higher than that prescribed under the Act. He should be retested by the prescribed standard by being asked to read a passage in simple Hindi not containing difficult words. 18. In the result the writ petition is allowed and the order of the Collector setting aside the election of the petitioner is set aside. The Collector is directed to give a fresh decision after testing the ability of the petitioner to read simple Hindi. 19. In the circumstances of the case I direct that parties shall bear their own costs of this writ petition. .