KRIPAL SINGH Vs. DARSHAN SINGH

JUDGEMENT

(1.) THIS Special Appeal is directed against the order dated February 19, 1985 passed by learned Single Judge whereby the writ petition filed by the appellant challenging the order dated October 11, 1982 passed by the Election Tribunal (Munsif Sri Ganganagar) has been dismissed.

(2.) THE facts briefly stated are that the appellant Kripalsingh and respondent No. 1 Darshansingh had contested the election for the post of the Sarpanch of Gram Panchayat 18Z in Panchayat Samiti Sri Ganganagar. In the said election the appellant secured 381 votes and respondent No. 1 secured 374 votes and the appellant was declared elected by a margin of 7 votes. Respondent No. 1 filed an election petition to challenge the election of the appellant. In the election petition respondent No. 1 has averred that the result of the election was vitiated on account of irregularities committed by the Returning Officer during the course of counting and that 20 valid votes cast in favour of respondent No. 1 have been improperly rejected and that 18 votes which were invalid have been improperly accepted in favour of the appellant. In the election petition it has also been alleged that at the time of the counting it had become dark and the lamp was extinguished during the course of counting by the supporters of the appellant and as a result of which 50 ballot papers out of the ballot papers containing votes in favour of respondent No. 1 were mixed in the ballot papers of the appellant and were counted in favour of the the appellant. The appellant in his written statement denied the aforesaid averments contained in the election petition. The Election Tribunal framed 4 issues. Issue No. 1 was as to whether the returning officer had improperly rejected 10 valid votes cast in favour of the respondent No. 1 and had improperly accepted 18 invalid votes in favour of the appellant. Issue No. 2, was as to whether on account of there being darkness at the time of counting due to the lamp being extinguished by the supporters of the appellant a total of 50 ballot papers containing votes in favour of respondent No. 1 were removed and mixed with the ballot papers of the appellant Issue No. 3 was as to whether the aforesaid issues being decided in favour of the respondent No. 1, it was necessary to order recounting of votes. After recording the evidence adduced by both the parties, the Election Tribunal passed the order dated October 11, 1982. In the said order the Election Tribunal decided issue No. 2 against respondent No. 1 and held that the allegations made by respondent No. 1 with regard to removal of bundle of 50 papers from the votes of respondent No. 1 and the same being mixed with the ballot papers of the appellant were groundless. With regard to issue No. 1 the Election Tribunal has found that respondent No. 1 in the election petition as well as in his evidence had stated that 20 valid ballot papers have been improperly rejected and 18 ballot papers were improperly accepted which fact has been denied by the appellant. The Election Tribunal has also held that at this stage the statement of respondent No. 1 could not be held to be groundless and that only after the recount of valid papers it can be said as to whether 20 valid votes were improperly rejected and 18 ballot papers were improperly accepted. In these circumstances, the Election Tribunal directed that it was necessary to order the recounting of votes. In taking The aforesaid view, the Election Tribunal has placed reliance on the decision of this Court in Amarsingh v. Munsif Magistrate Jadhpur 1967 RLW 224. The Election Tribunal was of the view that the decisions of the Supreme Court on which reliance has been placed by the appellant were not applicable because they related to election for the State Legislative Assembly and Lok Sabha and the conditions of the election held for those bodies are different from the conditions which prevail at the time of election for the Panchayats because in election for the Lok Sabha and State Legislative Assembly literate people take part in the process of counting but in the Panchayat elections this is not so.

(3.) IN Purshottam Singh's case S.B. Civil Writ Petition No. 2027 of 1982 decided on January 8, 1985 the learned Single Judge has held that the election petition must contain the concise statement of material facts and if it is lacking then no triable issue will arise and it can be said that no cause of action has been alleged by the petitioner and the petitioner can be non -suited on that very basis. At the same time learned Judge has observed that it cannot be lost sight of that in the election of Sarpanch at the time of counting it cannot be expected that no counting agents may be sitting at the time of counting and that they may not have been too literate and that the position is different in case of Assembly and Parliamentary elections. The. learned Judge has also observed that the area limited and the number of votes polled is also very small and on that basis it can be said that the particulars of each ballot paper can be recorded and may be stated in the petition. But the difficulty is that they are not in a position to do so. The learned Judge has expressed the view that that course cannot be oblivious of prevailing social and literacy condition and that reality cannot be ignored and that when the margin of votes is very narrow for true democracy it is always proper that the result must be declared after correct counting of votes. The learned Single Judge has also observed that for the exercise of powers under Article 226 of the Constitution, the Court should be guided primarily by the consideration of justice and equity, and the technical aspect should have no place and that the order of the Election Tribunal in that case was just, proper and equitable which will infuse faith in democracy.