RAMKISHORE Vs. JAGDISH PRASAD

JUDGEMENT

(1.) THE appellant Ramkishore and the two respondents, Jagdishprasad and Puniya, were candidates for election to the Rajgarh Municipality from Ward No. 3 The total number of persons who participated at the polling was 431, The counting commenced on 16 -9 -74 and on the same tav the result was declared. The appellant Ramkishore, respondent No. 1 Jagdish Prasad and respondent No. 2 Puniye a secured 207, 209 and 11 votes respectively. Two ballot papers were declared invalid. The other two bal of papers which were not counted related to PW 4 Gurucharandas and his wife Mst. Ladoo. Both of them were kept secret in sealed envelope marked Art 4 as they were challenged votes. It may be mentioned here bat at the time of polling the identity of Gurucharandas and Mst. Ladoo was challenged by respondent Jagdish Prasad. The Presiding Officer after evidence held both these voters to be genuine voters. They were therefore supplied with ballot papers which instead of being inserted into the ballot -box were kept by the Presiding Officer PW 3 Bhonreylal in a sealed envelope. As they were not in the ballot box, they were not counted as the time of counting of the votes. The Returning Officer declared respondent Jagdishprasad to be elected as he secured the highest number of votes. An election petition was then filed by the appellant Ramkishore on the ground inter -alia that the election of the returned candidate was void on account of improper refusal to receive the challenged votes, of Gurucharandas and his wife Mst Ladoo. According to the appellant, both these votes were cast in his favour and their non -reception has materially affected the election of the returned candidate. Respondent Jagdishprasad contested the petition and denied all material allegations pleaded in the petition. The learned Munsif, Rajgarh, is whose court the election petition was filed, rejected the petition. He held that the ballot papers of Gurucharandas and his wife Mst. Ladoo were challenged votes within the meaning of Section 42 of the Rajasthan Municipalities Election Order, 1960. hereinafter called as the Order. This finding is not challenged before me. The learned Munsif further held: .........[vernacular ommited text]........... The learned Munsif, however, came to the conclusion that there was noncompliance of the provisions of the Order in as much as the Presiding Officer did not record the word 'cancel' on the said two ballot papers of Gurucharandas and Mst. Ladoo. He then discussed the point whether the result of the returned candidate has been materially affected on account of non -compliance of the provisions of the Order and came to the conclusion in negative He accordingly rejected the election petition. It is against this order that the present appeal has been preferred by the appellant Ramkishore.

(2.) MR . Kaila, the learned advocate for the appellant, contends that the presiding officer improperly prevented Gurucharandas and Mst. Ladoo from inserting their ballot papers into the ballot box. This contention of Mr. Kalla appears to be well -founded. Undoubtedly, respondent no 1 Jagdishprasad challenged the identity of the said voters at the time of polling. For each challenge, he deposited a sum of Rs. 2/ - in cash with PW 3 Bhonreylal (Presiding Officer) On enquiry, PW 3 Bhonreylal was satisfied that both of them were electors having their existence on the electoral roll and challenge as to their identity was not established. The two voters were then supplied with the ballot papers and they duly entered their votes on these papers. A reading of the statements of PW 3 Bhonreylal and PW 4 Gurucharandas lead to the inference that PW 4 Gurucharandas and his wife Mst Ladoo wanted to insert their ballot papers into the ballet box but Bhonreylal did not permit them to do and instead took away the ballot papers to himself. On taking possession of the ballot papers, Bhonreylal kept them inside a sealed envelope and forwarded that sealed envelope along with other papers in another sealed envelope to the Returning Officer It is true that there is no direct evidence to show that that the said voters wanted to insert their ballot papers into the ballot -box and that Bhonreylal, Presiding Officer, prevented them from doing so But a careful reading of the statements of PW 3 and PW 4 and the conduct of PW 3 Bhonreylal in placing those ballot papers in a sealed envelope without canceling them as required by Section 38(8) of the Order leave no doubt that Bhonreylal took away the ballot papers and did not allow Gurucharandas and Mst. Ladoo to insert them into the ballot box. This action of PW 3 Bhonreylal was certainly not in accordance with lay and it amounted to improper refusal to receive valid votes within the meaning of Section 34(d)(iii) of the Rajasthan Municipalities Act, 1959, hereinafter referred to as the Act.

(3.) MR . Kalla next contended that in the present case, margin of the votes between the returned candidate and the appellant is so small (say two votes only) that reasonable guess or probability can be inferred and such inference is permissible under the law. In this connection, Mr. Kalla invited my attention to Samant N. Balakishna v. George Fernandez and Ors. : [1969]3SCR603 . The relevant observation of their lordships on which reliance is placed are contained in para 58 at page 1225 of the report. They run as under: In our opinion, the matter cannot be considered on possibility. Vashist Narain's case insists on proof. If the margin of votes were small something might be made of the points mentioned by Mr. Jethamalani. But the margin is large and the number of votes earned by the remaining candidates also sufficiently large. There is no room, therefore for a reasonable judicial guess the law require proof. How far that proof should go or what it should contain is not provided by the legislature. In Vashit's case 1956 1 SCR 509 : : [1955]1SCR509 and in Inavatullab v. Diwan Chand Mahajan (1958) 15 Ele LR 219 at pp. 235 236 (MP) the provision was held to prescribe an impossible burden. The law has however remained as before. We are bound by the rulings of this Court and mus' say that the burden has not been successfully discharged. We cannot overlook the rulings of this Court and follow the English rulings cited to us.