RAIMAL Vs. LAKHA

JUDGEMENT

(1.) THIS is a petition under article 226 of the Constitution by one Raimal against an order of Munsif, Barmer, acting as a Tribunal under rule 78 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules 1960 setting aside his election to ward No. 5 of Gadra Road village. No one has appeared to contest this writ petition.

(2.) RAIMAL petitioner and Lakha respondent No. contested the election to ward No. 5 of Gadra Road Panchayat. Both of them polled 73 votes each. Lots were drawn by the Returning Officer and RAIMAL was declared as duly elected. Against his election Lakha filed an election petition. It was contended on his behalf that there was a tendered vote in his favour which was not counted by the Returning Officer. The Tribunal counted this vote in favour of Lakha and declared him to be duly elected. The Rajasthan Panchayat and Nyaya Panchayat Election Rules 1960 do not contemplate the counting of tendered votes by the Returning Officer. They contemplate the counting of such ballot papers only as are put in the ballot box. Rule 33-A runs as follows : - Tendered Votes - (1) If a person representing himself to be a particular elector applies for a ballot paper after another person has already voted as such elector, he shall, on satisfactorily answering such question relating to his identity as the Returning Officer may ask, be entitled, subject to the following provisions of this rule to mark a ballot paper (hereinafter in these rules referred to as a tendered ballot paper) in the same manner as any other elector. (2) Every such person shall before being supplied with a tendered ballot paper, sign his name against the entry relating to him in a list in from III. (3) A tendered ballot paper shall be the same as the other ballot papers used at the polling booth except that shall be- (a) Serially the last in the bundle of ballot papers issued for use at the polling station or booth, and (b) endorsed in the back with the words "tendered ballot paper" by the Returning Officer in his own hand and signed by him. (4) The elector, after making a tendered paper in the voting compartment and folding it, shall instead of putting it into the ballot box, give it to the Returning Officer, who shall place it in a cover specially kept for the purpose. It is only when a person has already cast a vote representing him to be a particular elector and another person appears and claims that he is the real elector that a tendered ballot paper is handed over to him when the Returning Officer is satisfied that he is the real voter. There is no provision in the Panchayat Act or the Rules framed there under expressly authorising the Tribunal to count a tendered vote on being satisfied that the ballot paper which was put in the ballot box was marked by an imposter in the name of the elector who subsequently cast the tendered vote. But it was held in Roop Narain vs. the Munsif Behror and others (S. B. Civil Writ Petition No. 125 of 1966 decided on May 5, 1966) on general principles that the Tribunal should count a tendered vote on being satisfied that the ballot paper which was put in the ballot box was marked by an imposter in the name of the elector who subsequently cast the tendered vote. But such a vote cannot obviously be counted unless it is proved that the first vote in the name of the elector was cast by an imposter. Further it may be that an elector twice to cast his vote. In that case the first vote will be cast by him in the ballot box and the second vote will be cast by him as a tendered vote. It is obvious that the same person cannot vote twice. The Tribunal can ask the party concerned to produce the real elector and can satisfy it-sell that he cast the tendered vote. It cannot get hold of the person who cast the first vote. But the Tribunal has to trace the first vote also with the help of the marked copy of the electoral roll. It is only when the Tribunal is satisfied that the first vote in the name of the same elector was not cast in favour of Lakha that the tendered vote can be counted in his favour.