BHAGWANDAS Vs. COLLECTOR BIKANER

JUDGEMENT

(1.) THIS is a writ petition under Art. 226 of the Constitution by two electors of the Nokha Municipality challenging the validity of the general election held on 13. 11. 61 to elect a new Board. The petition was contested on behalf of the Collector, the Returning Officer and respondents Nos. 5, 6, 8, 9, 10, 11 and 12 who were elected as members of the Municipality at the said election.

(2.) A notice Ex. A under sec. 23 of the Rajasthan Municipalities Act 1959 (hereinafter) referred to as the Act) and under clause 4 (2) of the Rajasthan Municipalities Election Order 1960 (hereinafter referred to as the Election Order) was issued by the Collector on September 25, 1961 and published in the Rajasthan Gazette Extraordinary dated 27th September 1961 appointing November 13, 1961 as the date on which the general elections to the Municipal Board Nokha were to be held.

(3.) 11. 61 Government Higher Secondary School, Nokha. " 5. On 28. 6. 61 the Collector issued another order Ex. B appointing Shri Raghuraj Singh S. D. O. (South) Bikaner as Returning Officer for the preparation of electoral rolls under sec. 20 of the Act and for conducting the general elections under clause 5 of the Election Order. 6. The draft electoral rolls were published under the authority of Shri Raghuraj Singh on 26. 9. 61 in accordance with the programme Ex. C. By that time no order appointing him as Returning Officer for the preparation of the electoral rolls had been passed. The first contention on behalf of the petitioners is that as the draft rolls were published by a person without authority to do so the entire election is rendered null and void. I am unable to accept this contention. The publication of the draft rolls is no doubt a statutory act, but it is merely ministerial in nature. Although on 26. 9. 61 when the draft rolls were published the Collector had not passed any order in writing appointing Shri Raghuraj Singh as the Returning Officer for preparation of the electoral rolls under sec. 20 he was duly appointed as such by order dated 28. 9. 61. This irregular act in publishing the draft rolls on 26. 9. 61 was regularised when the order of his appointment was passed on 28. 9. 61. It may be mentioned here that it is the general practice in Rajasthan to appoint the same person as Returning Officer under sec. 20 of the Act as well as under clause 5 of the Election Order. When the Collector passed his order on 23. 9. 61 appointing Shri Raghuraj Singh S. D. O. (South) Bikaner as Returning Officer for conducting the election he must have intended to appoint him as Returning Officer for preparing the electoral rolls as well although by inadvertence this was not mentioned in the order. The first contention put forward on behalf of the petitioners has therefore no force. 7. Clause 7 of the Election Order provides that not less than 30 days before the date appointed for holding of an election the Returning Officer shall give public notice in form I. It was alleged in the petition that this notice was issued on 16. 10. 61. From the material on record however I am satisfied that this notice was duly published on 14. 10. 61 as directed in the letter of the Returning Officer No. Election/spl/4/61, dated 13. 10. 61 addressed to the Secretary, Municipal Board, Nokha. The notices were affixed by Gariba Ram and Bhatmal petitioner No. 2 was one of the witnesses who affixed his signatures to the order issued to Gariba Ram in token of his having affixed the notices to ward No. 4 at two places. Gariba Ram and Govind Ram have filed affidavits Ex. A-6 and Ex. A-7 respectively in support of this allegation. The date appointed for holding the election was 13. 11. 61. In accordance with the decision of a Division Bench of this Court in Anokh Mal Vs. Chief Panchayat Officer, Rajasthan (1) both 14. 10. 61 and 13. 11. 61 are to be excluded in counting the number of days intervening between the two dates for purposes of clause 7. There were only 29 clear days between these two dates. The second contention on behalf of the petitioners is that the notice under clause 7 lays the foundation of the election and the provision of clause 7 (1) laying down that not less than 30 days notice should be given is mandatory. This contention is also not acceptable. 8. A public notice appointing a date for general elections is generally mandatory. For it is from this notice that the electorate comes to know that they have been called upon to return their elected representatives. Such a notice lays the foundation of the election. Under the Rajasthan Town Municipalities Act 1951 there was no provision for the giving of such a notice in the Act but provision was made for it in rule 14 of the Rajasthan Town Municipal Election Rules 1951 which ran as follows: - "all municipal elections whether general or casual, shall be held by the Returning Officer. Written notice of such elections shall be given and published in Hindi and, if the said officer so directs, in English also, not less than one month before the date fixed for the election. Copies of the notice shall be affixed at the Municipal Office and at other conspicuous place or places within the municipality. " 9. The rule did not lay down that the notice shall be published in the Official Gazette. Electors of the Municipality who were temporarily residing outside the municipal area had thus no means of knowing that they had been called upon to return their elected representative. To remove this defect and also to lay greater emphasis on the importance of a public notice notifying the date appointed for holding the general election the provision regarding the giving of such notice was transposed from the rules to the Act itself under the new Act, sec. 23 (1) of which runs as follows: - "except as provided in sec. 295 there shall be general election or appointment by co-option, or nomination, as the case may be, to a board before the expiry of the term or extended term, as the case may be, of the board under sec. 11 on such date or dates as the State Government may, by notification in the official Gazette, appoint in that behalf. " 10. The same provision has been repeated in clause 4 (2) of the Election Order. The notice is now required to be given by the State. It is this notice under sec. 23 (1) of the Act which lays the foundation of the election as was held in Gokulchand Vs. the State of Rajasthan (2 ). The process of election commences with the issue of this notice. It is followed by the appointment of a Returning Officer by the Collector, under clause 5 of the Election Order, for conducting the elections. It is the Returning Officer who issues the notice prescribed under clause 7. It gives the following information - (a) the number of persons to be elected ; (b) the wards from which they are to be elected; (c) the number of seats reserved in each ward for the scheduled castes or the scheduled tribes. (d) the dates on which, the place at which and the hours during which the nomination papers shall be presented; (e) the place and date on which and the hours between which the nomination papers will be taken up for scrutiny; (f) the last date for the withdrawal of candidatures; (g) the date on which a poll shall be taken and the hours during which the poll will be open. (h) the date on which and the hour at which the Returning Officer will commence counting of votes. Notice under clause 7 is thus issued after the foundation for the election has been laid by a notice under sec. 23 and the process of election has commenced. Such a notice can only be regarded as directory and not mandatory and any defect in it is a mere irregularity on the part of the Returning Officer which cannot per se invalidate the election unless it can be shown affirmatively that the result of the election was materially affected thereby. 11. Next it is contended that the election is vitiated on account of non-compliance of the provision contained in clause 7 (1) (d) which lays down that an interval of at least seven clear days will be allowed between the date of publication of the notice and the earliest date for presentation of nomination papers. In the present case the last date for filing nomination papers was fixed as 23. 10. 61. Nomination papers could be filed on any date after the publication of the notice under clause 7 upto 23. 10. 61. Candidates thus had 8 clear days from the date of notice under clause 7 for filing their nomination papers. There seems to be no public policy behind the provision requiring an interval of at least 7 clear days to elapse between the date of publication of the notice under clause 7 and the earliest date for presentation of nomination papers. In the rules framed under the old Act what was prescribed was that the nomination papers shall be filed not less than 15 days before the date fixed for election (rule 15 of the Rajasthan Town Municipal Election Rules, 1951 ). There was no provision corresponding to that contained in clause 7 (1) (d ). As has already been mentioned above the process of election commences with the issue of notice under sec. 23 and notice under clause 7 which is issued by the Returning Officer during such process is not mandatory. The election cannot be vitiated by any non-compliance with the provision contained under clause 7 (1) (d ). 12. The last contention on behalf of the petitioners was that as both the counter-foil and the outer-foil of the ballot papers bore serial numbers the secrecy of the voting was violated and the election was vitiated. In accordance with Form No. IX contained in the Rajasthan Municipalities Election Order 1960 only the counter foil should bear the serial number and not the outer foil. But the secrecy of voting is not necessarily violated if both the counter-foil and the outer-foil of the ballot paper bear the serial number. At the time of the counting, agents of the candidates have a right to be present and to see the ballot papers. They can accordingly find out the serial numbers of the ballot papers marked in favour of particular candidates. But they have no right to examine the ballot paper at the time it is issued to a voter. They cannot therefore know the serial number of the ballot paper which is issued to a particular voter. All that the candidates or their agents are entitled to do is to challenge the identity of a particular voter as provided in clause 35 (3) of the Election Order. Sec. 32 of the Act makes the provisions of sec. 128 of the Representation of the People Act 1951 applicable. That section runs as follows: - "maintenance of secrecy of voting - (1) Every officer, clerk, agent or other person who performs any duty in connection with the recording or counting of votes at an election shall maintain, and aid in maintaining, the secrecy of the voting and shall not (except for some purpose authorized by or under any law) communicate to any person any information calculated to violate such secrecy. (2) Any person who contravenes the provisions of sub-sec. (1) shall be punishable with imprisonment for a term which may extend to three months or with fine or with both. " 13. Every officer, clerk, agent or other person who performs any duty in connection with the recording or counting of votes at an election is thus bound to maintain secrecy of voting. 14. The ballot paper is marked by the voter in a separate compartment screened from observation as provided under clause 28. Assuming that a candidate or his agent is unauthori-sedly able to see the serial number of the ballot paper which has been issued to a particular voter he can only find out for whom he has voted at the time of counting, that is, after the voter has already cast his vote.