RAM NARAIN Vs. GOVERDHAN SINGH

JUDGEMENT

(1.) THE petitioner in this petition is a returned candidate, whose election has been set aside by the impugned order Ex. 9, D/- 27-1-2007.

(2.) THE case of the petitioner, as pleaded in the writ petition is, that for the election of Sarpanch and Panch of the Gram panchayat, Palana, election programme was declared, and according to programme, 3-2-2005 was fixed for filing nomination form, scrutiny, and time for withdrawal of the nomination paper, and election was to be held on 4-2-2005. According to the petitioner, in all 10 nomination papers were filed for the office of Sarpanch, and out of them only 9 were found to be valid, and a list thereof was published on the notice board, and four of them presented withdrawal, which included the respondent No. 1, hereafter referred to as the "election-petitioner". The elections took place between five persons only, and the petitioner was duly elected. It is alleged, that election-petitioner filed an election petition, on the ground, that he did not submit any notice for withdrawal, and signatures on the withdrawal notice are forged one, and as such the election has been materially affected. A copy of the election petition has been filed as Ex. 1. The petitioner contested the election petition, contending that election-petitioner himself submitted notice for withdrawal, and he has himself filed notice for withdrawal, and copy of the notice is filed as Ex. 2. Then, it is pleaded that the election petition filed by the election-petitioner is not maintainable. During trial the election-petitioner examined himself as A. W. 1, and also examined Jai narain A. W. 2, then the petitioner examined himself as n. A. W. 1, and also examined Sukhdev N. A. W. 2, Kishna Ram as n. A. W. 3, and Ram Chandra as N. A. W. 4. Then, the case of the petitioner is, that issues framed by the learned trial Court are not in accordance with law, and election petition was liable to be rejected under O. 7, rule 11. However, the same has been accepted vide Ex.-9. It is pleaded that election has been set aside against the provisions of article 243-O (b) of the Constitution, without any authority of law. With these pleadings the impugned order has been challenged, inter alia on the ground, that the election has been set aside without looking into the provisions of Rule 80 of the rajasthan Panchayati Raj (Election) Rules, 1994, hereafter referred to as the Rules, and without framing any issue in terms of Rule 80. The other ground taken is, that the learned trial Court has not considered and referred the provisions of Rule 80 and Rule 38, and decided the matter as if it is a civil suit. Then, it is contended that the election petition does not disclose any cause of action, and in the alternative it is pleaded, that while deciding issue No. 1 the learned trial court failed to appreciate, that there is no provision whereunder the Returning Officer was required to make any endorsement on the withdrawal notice, and there is no particular form of notice prescribed for withdrawal notice. All that is required is, that the person withdrawing shall give a notice to the effect, that the petitioner has proved that the notice of withdrawal Ex.-10 has been produced by the election-petitioner. Then, another ground raised is that the second part of the issue No. 1, regarding material effect on the election, is, on its face, illegal, as the issue has been framed without even looking to the provisions of Rule 80, and relevant provisions of the rules. It is also contended that no material facts have been pleaded in the election petition, about material effect on the election, nor there is an iota of evidence on that point, nor is there any consideration to that effect in the judgment. Inter alia with these averments the impugned order Ex. 9 is prayed to be quashed.

(3.) ELECTION-PETITIONER appeared as caveator, who submitted his reply on 14-3-2007, contesting the writ petition. In the reply certain preliminary objections have been raised. One of the preliminary objections raised is, that the petitioner has not tried to assail the finding of the learned Tribunal, and has mainly relied upon Rules 28 and 80 of the rules, contending, that there is no non-compliance thereof, and in view of the fact, that the findings of the learned Tribunal have not been challenged in appropriate manner, the petitioner is not entitled to any relief. Various other preliminary objections have been raised, but they are. in substance, pleading on merits, therefore. I need not dilate much on that. Then, giving parawise reply, it was contended that it is wrong to contend that four persons had withdrawn their nominations including election-petitioner, rather the election-petitioner had never withdrawn the nomination paper in any manner, and that the petitioner has been illegally and unconstitutionally elected for the post of Sarpanch. It is also alleged, that since the election-petitioner came to know of the episode, he immediately filed an application to the District Election Officer on 4-2-2005 itself, copy whereof has been produced as Ex. 7 on the record of the learned Tribunal, and as Annexure R 1/6 in this petition. Then, it is contended that the election-petitioner has proved his pleading, as well as four documents, while the petitioner has failed to prove that the petitioner had withdrawn his candidature, rather there is apparent contradiction in the statement of petitioner, and evidence has been rightly appreciated by the learned trial court. It was denied that the election petition does not disclose any cause of action, or that it does not disclose any of the grounds specified in Rule 80, rather the issue has rightly been framed, and rightly decided. It is contended that both the parties were alive to the controversy, existing between the parties, and had gone to trial with full consciousness, and at no point of time any grievance was raised by the petitioner with regard to framing of the issue, or with regard to the election petition to be liable to be dismissed under O. 7, Rule 11. It was also alleged that from Ex. 11 and 12, available on the record of the trial Court, and produced collectively as Annexure p1/7, it is clear that there has been patent non compliance of Rule 28. Then, it is pleaded that it is incorrectly alleged, that endorsement of presentation is not required on the notice of withdrawal, rather delivery thereof is very material aspect under Rule 38, and that the election-petitioner has clearly proved, by proving on record of the learned trial Court, the documents Exs. 11, 12, 5 and 10, and that the petitioner had never withdrawn, and that the Returning officer proceeded in wholly illegal manner, to deprive the petitioner from availing the statutory right of contesting the election. It was denied that the election petition is lacking in any material particular, or that there is no evidence, rather the judgment of the learned trial Court is based on proper appreciation of evidence, and does not require any interference. Inter alia with these pleadings, it was prayed that the writ petition be dismissed.