GANGARAM Vs. TARURAM

JUDGEMENT

(1.) This special appeal filed under Section 18 of the Rajasthan High Court Ordinance is directed against the judgment of the learned single Judge (D. L. Mehta J.) dt. September 9. 1983 in S. B. Civil Misc. Writ Petn. No. 1973 of 1983 filed by the appellant whereby the learned single Judge dismissed the said writ petition and affirmed the judgment dt. July 27. 1983 passed by the Civil Judge Bikaner (hereinafter referred to as 'the Election Tribunal' allowing the election petition filed by Taru Ram Respondent No. 1 and Birma Ram Respondent No. 2 and setting aside the election of the appellant as Sarpanch of Gram Panchayat Malasar.

(2.) The election of the Sarpanch Gram Panchayat Malasar was held in the month of December 1983 under the notification issued by the District Magistrate. Bikaner. The nomination papers were required to be submitted on Dec. 30 1981 from 8 A. M. to 11 A. M., the scrutiny of the nomination papers was fixed on the same date at 11.30 A. M. and the date of poll was fixed as Dec. 14 1981. Eight persons, including the appellant. Respondent No. 1 Taru Ram and one Pema Ram had filed their nomination papers. At the time of scrutiny the nomination paper of Pema Ram was rejected by the Returning Officer on the ground that name in the electoral roll did not tally with the serial number and ward number. Out of the candidates whose nomination papers were accepted, all the candidates except the appellant and respondent No. 1 withdrew their candidature. The polling was held on December 14 1981. The appellant secured 1551 valid votes and respondent No. 1 secured 1467 valid votes. The appellant was declared to have been elected by a majority of 84 votes. Thereupon respondent No. 1. the defeated candidate, and respondent No. 2, in his capacity as an elector, filed a joint election petition challenging the validity of the election of the appellant. The election was challenged on various grounds. The ground which is relevant for the purpose of present appeal is that the nomination of Pemaram had been improperly rejected. The said election petition was contested by the appellant. The Election Tribunal, by its judgment dt. July 27, 1983 allowed the said election petition filed by respondents NOS. 1 and 2 and set aside the election of the appellant on the ground that the nomination of Pema Ram had been improperly rejected. The Election Tribunal was of the view that the name of Pema Ram was entered in the electoral roll for Gram Panchayat Malasar at serial No. 58 of ward No. 5 and that in the nomination paper the said candidate had mentioned that his name was entered in the electoral roll of Gram Panchayat/Malasar at serial No. 58 of Ward No 1. According to the Election Tribunal the aforesaid error in the nomination, paper with regard to number of the ward of the electoral roll was only a technical error and it could not be regarded as a material defect. The Election Tribunal further held that Pema Ram was present at the time of scrutiny of the nomination papers and that the Returning Officer, if he had any doubt about the identity of Pema Ram. he could have made an inquiry and satisfied himself about the same and that he did not do so and therefore, the nomination of Pema Ram must be held to have been improperly rejected. Feeling aggrieved by the aforesaid decision of the Election Tribunal the appellant filed a writ petition before this Court wherein he prayed that a writ of certiorari may be issued to quash the order of the Election Tribunal. The said writ petition of the appellant was dismissed by the learned single Judge by his order dt. Sept. 9. 1983. The learned single Judge was of the opinion that the nomination of Pema Ram had been wrongly rejected and that the Election Tribunal was right in accepting the election petition and in setting aside the election of the appellant.

(3.) Before we deal with the contentions urged by Shri H.M. Parekh, the learned counsel for the appellant, in support of this appeal, it would be necessary to refer the relevant provisions of the Rajasthan Panchayat Act. 1953 (hereinafter referred to as 'the Act') and Rajasthan Panchayat and Nvaya Panchayat Election Rules 1960 (hereinafter referred to as 'the Rules') Section 5 of the Act empowers the Collector or such subordinate Gazetted officer of the State Government as the Collector may authorised in that behalf, to divide each Panchayat circle into such number of wards as may be convenient for the purpose of election and fix the number of Panchas to be elected from such wards. Section 10 of the Act requires that the list of voters should he prepared for each of the wards into which the Panchayat circle is divided under Section 5. Section 6 of the Act lays down that the election of Panchas shall be held and conducted in the prescribed manner. Sub-section (1) of Section 13 lays down that every Panchayat shall have a Sarpanch who must be a person qualified to be elected as a Panch and able to read and write Hindi and shall be elected by the electors of the whole Panchayat circle in the prescribed manner. The mode of election of Panchas and Sarpanchas is prescribed in the Rules which have been framed by the State Government in exercise of the powers conferred by Section 89 of the Act. Provisions with regard to election of Panchas are contained in Part 3 of Chap. II (Rules 14 to 461. Rule 48 makes provision for simultaneous election of Sarpanch and Panchas and Sub-rule (2) of Rule 48 provides that the provisions of Rules 14 to 45 shall, so far as may be apply mutatis mutandis to such election. Rule 14 of the Rules makes provision for issuance of a notification by the Collector calling upon all the Wards in the Panchayat circle to elect in the case of single member ward one Panch each and in the case of multi member ward as many Panchas as have been fixed therefor under Section 5. within the time specified in the notification. Rule 14 further provides that the Collector, by the aforesaid notification, may appoint a day on or before which and the hour thereof by which nomination papers are to be presented, a day not later than the day next succeeding the date fixed for the presentation of the nomination paper and the hour thereof on or at which the scrutiny of such nomination papers shall be made, a day not later than the day next succeeding the day fixed for scrutiny of the nomination papers on or before which and the hour thereof by which nominations may be withdrawn a day on which a poll shall, if necessary be taken and the hour within which such poll be taken. Rule 15 prescribes the duties and powers of the Returning Officer and Sub-rule (1) of Rule 15 lays down that in addition to the duties imposed and powers conferred on Returning Officer by or under the Rules it shall be his general duty to do all such acts and things as may be necessary for conducting effectively an election under the Rules. In Sub-rule (2) of Rule 15 are specified certain specific duties and powers of the Returning Officer. Rule 16 relates to the presentation of nomination paper. Rule 17 prescribes the procedure upon delivery of nomination caper and Rule 18 makes provision for scrutiny of nomination paper. Since in the present case we are concerned, primarily, with questions relating to rejection of the nomination involving interpretation of the provisions contained in Rules 16 and 18 of the Rules, the said provisions are set out as under : -