MANGTURAM Vs. PALARAM AND ANR.

JUDGEMENT

(1.) THIS writ petition filed under Articles 226 and 226 of the Constitution of India is directed against the order dated 7ch August, 1982 passed by the Munsif and Judicial Magistrate, Nohar in election petition No. 14/82. By the order aforesaid the Munsif allowed the said election petition filed by Palaram, respondent No. 1, set aside the election of the petitioner Mangturam, as Sarpanch of Gram Panchayat, Mahanderpura is Panchayat Samiti, Nohar, District Sri Ganganagar, and declared respondent No 1 as duly elected as Sarpanch of the said Gram Panchayat.

(2.) THE election for the office of Sarpanch of the Gram Panchayat Mahanderpura was held on 10th December, 1981. The petitioner and respondent No. 1 were the only two contesting candidates. The total number of votes which were cast in the election were 1862 out of which 110 votes were rejected as invalid. Out of the 1752 valid votes the petitioner received 879 votes whereas respondent No. 1 received 873 votes and the petitioner was, therefore, declared as duly elected. Thereupon respondent No. 1 filed the election petition in the court of Munsif challenging the election of the petitioner. Amongst the grounds on which the aforesaid election of the petitioner was challenged by respondent No, 1, one was that 16 valid votes cast in favour of respondent No. 1 had been improperly rejected during the course of counting and the other was that 12 ballot papers containing valid votes in favour of respondent No. 1 had been put in the packets of ballot papers containing votes in favour of the petitioner and were wrongly counted as votes cast in favour of the petitioner. According to the aforesaid election petition respondent No. 1 had secured 901 valid votes whereas the petitioner had secured 867 valid votes only and, therefore, respondent No. 1 had secured n ajority of valid votes. The aforesaid election petition was contested by respondent No. 1. The Munsif framed 9 issues No. 7 was as to whether the Returning Officer declared the petitioner as elected by a majority of 6 votes by rejecting 16 valid votes of respondent No. 1 and including 12 valid votes of respondent No. 1 in the packet of the petitioner. On 14th July, 19(sic)2, respondent No. 1 moved an application before the Munsif for summoning of the record containing the ballot papers for the purpose of recounting. On the said application the Munsif passed an order dated 26th July 1982 wherein he held that the main controversy between the parties was with regard to improper rejection of the votes cast in favour of the petitioner and that it was necessary in the interest of justice to inspect the rejected ballot papers. The Munsif, therefore, ordered that the rejected ballot papers may be inspected and directed that the ballot papers connected with the election be summoned The matter was taken up on 31st July 1982 and on that date 110 rejected ballot papers were inspected and none of those ballot papers was found to be valid. Thereafter the ballot papers containing votes in favour of the petitioner were inspected and 25 ballot papers which were considered doubtful were sorted out and kept separately for the purpose of considering the validity of the same and the matter was a adjourned to 6th August 1982. On 6th August 1982 an application was submitted by the petitioner wherein an objection was raised with regard to inspection of the ballot papers containing votes in his favour on the ground that by order dated 26th July 1982 the Munsif had only directed that inspection of the rejected ballot papers be made and no order had been passed for the inspection of ballot papers containing votes in favour of the petitioner and that the court was not entitled to inspect the ballot papers containing votes in favour of the petitioner. The aforesaid application submitted by the petitioner on 6th August 1982 was rejected by the Munsif by his order dated 6th August 1982 on the view that on 31st July, 1982 an oral prayer had been made by the learned Counsel for respondent No. 1 for inspection of the votes cast in favour of the petitioner and no objection was raised on behalf of the petitioner to the aforesaid request for the inspection of his votes. In the order dated 6th August 1982 the Munsif further observed that his order dated 26th July, 1982 did not preclude the inspection of the ballot papers containing votes in favour of the petitioner and that it was necessary in the interest of justice to inspect the ballot papers containing votes in favour of the petitioner. Thereafter the Munsif examined the 25 ballot papers which had been kept separately on 31st July, 1982 and in the light of the said scrutiny he passed the impugned order dated 8th August, 1982 whereby he allowed the election petition filed by respondent No. 1. In the order aforesaid, the Munsif while dealing with issue No. 7 held that during the course of inspection of rejected votes, no vote was found to have been improperly rejected and no valid vote of respondent No. 1 was found to have been included in the bundle of ballot papers containing votes in favour of the petitioner. In his order aforesaid the Munsif has considered the 25 ballot papers containing votes cast in favour of the petitioner which had been separated by order dated 31st July, 1982 and after examining the said ballot papers the Munsif held that six ballot papers (bearing Nos. 147322, 147712,147494, 146496, 146701, and 147728) were invalid because they did not contain the mark of the instrument supplied for the purpose as required under Rule 39 (1)(iii) of the Rajasthan Panchayat and Nyaya Panchayat Election Rules, 1960 (here in after referred to as 'the Rules'). The Munsif further found that two ballot papers (bearing Nos. 146367 and 147229) were invalid for the reason that they did not contain the seal but contained thumb impressions and were liable to be rejected under rule 39 (1) (iii)of the Rules. The Munsif also held that one ballot paper (bearing No. 147563) was invalid for the reason that it contained marks against the names of both the candidates. The Munsif thus found that nine votes cast in favour of the petitioner were invalid and they had been improperly accepted as valid by the Returning Officer. In view of the aforesaid finding the Munsif held that the petitioner had received 870 votes as against 873 votes received by respondent No. 1 and as such respondent No. 1 had received majority of votes. The Munsif therefore, allowed the election petition filed by respondent No. 1, set aside the election of the petitioner and declared respondent No. 1 as having been elected as Sarpanch. Being aggrieved by the aforesaid order dated 7th August, 1982 passed by the Munsif, the petitioner has filed this writ petition.

(3.) IN the writ petition, the petitioner has challanged the validity of the order dated 7th August, 1982 passed by the Munsif on the ground that the Munsif has committed an error in permitting inspection of the ballot papers containing votes cast in favor of the petitioner inasmuch as in the election petition had not been pleaded that any of the votes in favour of the petitioner was invalid and had been improperly accepted and that in the absence of any such pleading the Munsif was not justified in permitting inspection of the ballot papers containing votes cast in favour of the petitioner. In the writ petition the petitioner has also challenged the findings recorded by the Munsif with regard to the invalidity of the nine votes cast in favour of the petitioner which have been held to be invalid by the Munsif and has submitted that the aforesaid findings are based on no evidence.