JABAR SINGH Vs. PRABHUDAN

JUDGEMENT

(1.) JABARSINGH petitioner, who was elected as a Sarpanch of the Gram Panchyat Udaliyawas at the general Panchayat elections held in January, 1965 and whose election was set aside by the Munsif of Bilara on two separate election petitions filed by Prabhu Dan and Harak Chand, respondents Nos. 1 and 2 respectively, questions the validity of the judgment of the learned Munsif by this writ petition. The relevant facts are briefly these.

(2.) PETITIONER Jabar Singh, non-petitioner No. 1, Prabhudan, non-petitioner No. 2 Harakchand and one Madanlal filed nomination papers for the office of Sarpanch for Gram Panchayat Udaliyawas. Harakchand, non petitioner No. 2 is said to have filed his nomination paper at 9. 40 a. m. on 4. 1. 65. The petitioner filed his nomination paper for the office of Sarpanch at 9. 45 a. m. on that very day. Madanlal filed his nomination papers for Sarpanch at 9. 30 a. m. Harakchand and Madanlal also filed their nomination papers for the office of Panchas for separate Wards. The Returning Officer scrutinised the nomination papers the same day. According to the petitioner, both Shri Harak Chand and Shri Madan Lal expressed before the Returning officer, in unambiguous terms, at time of scrutiny of their nomination papers that they did not want to contest the election for the office of Sarpanch, but only wanted to stand for the election of the office of Panchas from their respective wards and they requested the Returning Officer to reject their nomination papers for the office of Sarpanch. Thus it is the petitioner's case that it was on the representation made by the concerning candidates themselves that the nomination papers of Harakchand and Madanlal were rejected by the Returning Officer. The petitioner avers that it was in token of the concerning candidates making the request themselves that the Returning Officer had asked them to sign the endorsement made by him which they did. According to the petitioner, there remained in consequence only two contestants for the office of the Sarpanch namely, the petitioner and non-petitioner No. 1 Prabhu Dan. As a result of the poll the petitioner was found to have obtained 377 votes, whereas non-petitioner Prabhu Dan had obtained only 364 votes. As a result of the counting of votes the Returning Officer declared the petitioner to have been duly elected as a Sarpanch of the Gram Panchayat.

(3.) ON the other hand, learned counsel for the non-petitioner argues, with equal vehemence, that once a nomination paper has been properly delivered and received by a Returning Officer, then such a nomination paper could be withdrawn only in conformity with the provisions of rule 19 of the Rules and in no other manner. In elaboration learned counsel urges that this rule has designedly been framed to guard against possible mal-practices and to ensure fair play at the hands of the Returning Officers who are not expected to get themselves mixed up with the affairs of the candidates appearing before them. Learned counsel maintains that if rule 19 were not to be applied with full vigour then it would open the flood gates for various kinds of mischievous practices at the time of elections. As regards the holding of two offices by a person namely, that of a Panch and Sarpanch at the same time, the learned counsel submits that even though there may not be a provision in the Act or the Rules corresponding to sec. 190 of the Representation of the People Act, 1951, there is no legal bar to a person seeking election for the two offices at the sane time. Learned counsel points out that even after election a person can give up one of the two offices, in the absence of any provision in the Act or the Rules one way or the other. The disqualification, if at all, according to the learned counsel, could be there only after a person is elected to the two offices and thereafter if he wants to hold both the offices simultaneously, but there can be no disqualification, according to him, at the stage of filing of the nomination papers Learned counsel, therefore, urges that the election tribunal (Munsif) was right in holding that the nomination papers of non-petitioner No,2 Harakchand and Madanlal had been wrongly rejected.