BHOMA RAM Vs. DISTRICT ELECTION OFFICER

JUDGEMENT

(1.) THIS petition has been filed by the petitioner challenging the order dated 16.1.2006 passed by the learned District Judge as Election Tribunal under Rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994 (hereinafter referred to as the Rules of 1994). The Tribunal has set aside the election of the petitioner as Sarpanch of Gram Panchayat Bagari held on 31st January, 2005. The main ground of setting aside the election is that nominations were to be filed on 30.1.2005 and 7 candidates filed their nomination for the post of Sarpanch in the said election namely Abdul Azeez, Arjun Singh, Kailash Singh, Puna Ram and Jiya Ram, the respondents No. 3 to 6 in the present writ petition, the present petitioner Bhoma Ram and one Balu Ram. The said election was challenged by these respondents in the election petition filed under Rule 80 of the 1995 Rules inter alia on the ground that one candidate Balu Ram did not withdraw from the said election after filing his nomination for the said election in accordance with the Rules and that is why the list of candidates with the symbols assigned to them was issued in form No. 5 prescribed under Rule 29 of the Rules which is Exhibit -1 on the record of Election Tribunal. The winning candidate, the present petitioner Bhoma Ram was at serial No. 7 in the said list with the symbol of camera assigned to him. The learned Tribunal found that despite withdrawal of the said candidate Balu Ram in the ballot papers issued for the election held on 31st January, 2005, the said ballot paper contained only 6 names with the name of Bhoma Ram mentioned at serial No. 6 with the symbol of Candles which was earlier given to Balu Ram and the name of Balu Ram was deleted. The learned Tribunal, therefore, found that the entire election process was vitiated and the election of the present petitioner accordingly was set aside.

(2.) MR . P.S. Bhati, learned Counsel for the petitioner submitted that as per Rule 80 of the said Rules of 1994 unless the petitioner could show that his election was materially affected by the alleged non -compliance of the provisions of the Act or any of these Rules, they could not successfully challenge the election of the present petitioner. Taking through the record of the case, he read before the Court the statement of withdrawing candidate Balu Ram, who deposed before the Tribunal that he withdrew his candidature on the stipulated date and before stipulated hour i.e. 3:00 PM on 30th January, 2005 and, therefore, his name was not included in the ballot paper. He submitted that merely because of by mistake in Exhibit 1 form No. 5, which is of course supposed to be proposed under Rule 29 after withdrawal of the name process is over, even if the name of said withdrawing candidate Balu Ram, who is shown as included that cannot vitiate the entire election process as the present respondents and the petitioners before the Election Tribunal, failed to establish that the name of Balu Ram with the symbol of Candles was included in the final ballot paper as well. He submitted that the present petitioner won the election with thumping majority and secured 1737 votes and was leading the other candidates by far more margin and the nearest second candidate scored only 789 votes out of total votors around 4700. He, therefore, submitted that no prejudice was caused to the present respondents by said irregularity in Exhibit 1 which was prepared on 30.1.2005 by Returning Officer by mistake, even if it is taken to be one, and since in the final ballot paper the name of Balu Ram was not included and other six names were clearly given with their respective symbols, the election of the present petitioner Bhoma Ram could not be set aside. He further submitted that by the change of symbol of Bhoma Ram, the present petitioner, if at all one could suffer in the election process, it is the petitioner or the withdrawing candidate Balu Ram but not the present respondents, whose symbols remained intact. He relied upon the judgment of Hon'ble Supreme Court in Ms. Krishna Mohini v. : AIR2000SC317 , wherein the Hon'ble Supreme Court has held as under:

(3.) I have heard learned Counsels and perused the record. It would be worthwhile to reproduce the relevant rules 28, 29 and 80 of the aforesaid Rules of 1994. The same are quoted below: