| SooperKanoon Citation | sooperkanoon.com/67442 |
| Court | Rajasthan Jodhpur High Court |
| Decided On | Dec-15-2015 |
| Appellant | Mishri Lal |
| Respondent | State and Ors |
1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :
ORDER: S.B.CIVIL WRIT PETITION No.13750/2015 Mishrilal Vs State of Rajasthan & ORS.Date of Order :: 15.12.2015 PRESENT HON'BLE MR.JUSTICE P.K.LOHRA Mr.T.R.S.Sodha for the petitioner Mr.R.S.Choudhary for the respondent No.4 (caveator) Reportable BY THE COURT: Petitioner, an elected Sarpanch of Gram Panchayat, Dhanop Panchayat Samiti, Shahpura District Bhilwara has laid this writ petition under Articles 226 & 227 of the Constitution of India to challenge the impugned judgment dated 17.11.2015 (Annex.6) rendered by the Additional District Judge, Shahpura District Bhilwara (for short ‘the learned Election Tribunal’).By the impugned judgment, the learned Election Tribunal has allowed the election petition of the forth respondent – election petitioner under Section 43 of the Rajasthan Panchayati Raj Act, 1994 (for short ‘the Act’) read with Rule 80 of the Rajasthan Panchayati Raj (Election) rules, 1994 (for short ‘the Rules of 1994’) and ordered recounting of votes within 45 days for facilitating fresh declaration of the result of election.
Stated in succinct, the factual matrix giving rise to this petition are that forth respondent submitted an election petition under Section 43 of the Act read with Rule 80 of the Rules of 1994 questioning the election of the petitioner as Sarpanch of Gram Panchayat, Dhanop before the learned District Judge, Bhilwara.
The 2 learned District Judge, Bhilwara transferred the election petition to the learned Additional District Judge, Shahpura District Bhilwara and thereupon it has acted as Election Tribunal in the matter.
In the election petition, precisely, the forth respondent has averred that Returning Officer has committed serious irregularities in counting of votes and at his whims and caprice found that petitioner has polled more votes than the forth respondent for declaring him elected as Sarpanch.
Pointing out serious illegalities/discrepancies in the counting of votes as per the version of the forth respondent, he as well as his agent submitted written objection for recounting but without considering the same, the Returning Officer declared the petitioner elected as Sarpanch.
As per the result, the forth respondent polled 710 votes whereas the petitioner, the returned candidate, polled 718 votes.
Besides that, the votes polled by other candidates who were in fray are also incorporated in the pleadings.
The forth respondent has specifically pleaded in his election petition that during counting of votes, he was present with his agent and the petitioner was also accompanied by his agent but neither he nor his agent was allowed to have access with the votes during their scrutiny.
A plea is sought to be raised in the election petition that after counting of votes at the threshold, he was declared elected by 42 votes but at the request of the petitioner, the Returning Officer proceeded for recounting and in the recounting of votes, the petitioner is declared elected by a margin of 8 votes.
Questioning the process of recounting of votes, the forth respondent has averred in the election petition that during recounting of votes, he as well as his agent were not allowed to see the number of votes polled by each candidate.
In substance, the allegation of the forth 3 respondent in the election petition was that process of recounting was a farce and the entire result was manipulated and maneuvered by the Returning Officer to petitioner’s advantage.
Harping on 40 votes, which according to the forth respondent, were polled by him but not counted in his favour, has materially effected the result of the election is set out a plausible ground for recounting.
That apart, the forth respondent has also submitted in the election petition that his two valid votes were illegally rejected by the Returning Officer.
In his election petition, the forth respondent has pleaded that he submitted written objections against counting of votes but his objections were not paid any heed and the result of the election was declared.
The forth respondent has castigated the Returning Officer and his subordinates that they have counted votes in an absolutely arbitrary manner and their modus operandi in counting of votes has vitiated the entire counting process.
A yet another improved version is also projected in the election petition by the forth respondent that his written complaint was not accepted by the Returning Officer de hors the law.
It is on the strength of all these allegations, the forth respondent has craved for recounting of votes and declaring election of the petitioner as Sarpanch of Gram Panchayat, Dhanop null and void.
The election petition is contested by the petitioner as well as by the Returning Officer.
The petitioner in his reply to the election petition refuted all the averments contained in the election petition.
The petitioner has specifically pleaded that after counting of votes, he was declared elected and the entire counting process was carried out by the Returning Officer impartially and dispassionately.
The allegation of the forth respondent that against counting of votes, any 4 objection was submitted on his behalf for recounting is also countered by the petitioner.
The petitioner has submitted in the returnm that entire election petition is based on vague, cryptic and wholly concocted facts and, therefore, no case for recounting of votes is made out.
The forth respondent’s specific allegation that his valid 40 votes which are not counted is also aptly dealt with by the petitioner in his reply.
In this respect, the petitioner has specifically submitted that all these facts are false and fabricated.
In totality, categorising all the allegations in the election petition as omnibus allegations, the petitioner has prayed for rejection of election petition.
The Returning Officer, who was party to the election petition, also submitted his reply countering all the allegations.
The Returning Officer, in his return, has asserted that he has discharged his duties with honesty and declared the result of election in terms of votes polled by each candidate.
The plea of forth respondent for recounting of votes orally or in writing submitted before him is also denied by the Returning Officer emphatically.
That apart, the so- called 40 valid votes polled by forth respondent and not counted in his favour is also specifically denied by the Returning Officer.
The positive assertion of forth respondent that he was earlier declared elected by 42 votes and in the recounting he was defeated by 8 votes is also emphatically denied by the Returning Officer.
In substance, the Returning Officer has also reiterated all the objections in the reply which were taken by the petitioner for seeking rejection of the election petition.
On the basis of pleadings of rival parties, the learned Election Tribunal framed five issues for determination.
5 For substantiating his case, the forth respondent – election petitioner himself tendered his affidavit.
The petitioner and the Returning Officer also tendered their respective affidavits in defence.
The respective deponents were subjected to cross- examination on their affidavits.
The forth respondent reiterated all the facts averred in the election petition in his affidavit and similarly the petitioner and the Returning Officer also stated all those facts which were pleaded by them in their reply.
The learned Election Tribunal decided issue Nos.1 and 2 simultaneously.
While deciding issue Nos.1 and 2, the learned Election Tribunal has taken cognizance of contradictions in the version of the petitioner and the Returning Officer.
The learned Election Tribunal has considered the positive assertion of the forth respondent that counting of votes was carried out twice and in this respect, the version of the petitioner is also considered by the learned Election Tribunal wherein he too has admitted recounting of votes but while specifically denying that earlier the forth respondent polled more votes than him and he was declared elected in recounting.
As a matter of fact, he made positive assertion that in the fiRs.counting, he secured more votes than the forth respondent and second counting was carried out by the Returning Officer on oral request of the election petitioner.
Construing this unison version of the petitioner as well as the forth respondent and the solitary version of the Returning Officer that no recounting of votes was carried out, the learned Election Tribunal has casted doubts on the role of the Returning Officer and accordingly, the learned Election Tribunal proceeded to decide both these issues against the petitioner.
It may be emphasised here that the stand of Returning 6 Officer in his reply, affidavit and during cross-examination is consistent inasmuch as at no point of time, he has admitted recounting of votes.
A crucial issue i.e.issue No.5 questioning the jurisdiction of the Election Tribunal is decided in favour of the respondent- election petitioner.
Therefore, in totality, the learned Election Tribunal by relying on the findings recorded vis-a-vis in issue Nos.1 and 2 ordered for recounting of votes in the impugned judgment.
Learned counsel for the petitioner Mr.T.R.S.Soda has vociferously canvassed all the grounds urged in the writ petition to assail the impugned judgment.
In support of his arguments, learned counsel has placed reliance on following legal precedents:- (1) Jagdish versus Chandgi & Anr., 1998(2) WLC (Raj.) 114 (2) Smt.Madhu versus Smt.Bhanwari & Ors., 2004(1) WLC (Raj.) 11 (3) Mahendra Pal versus Shri Ram Dass Malanger & Ors., AIR2002SC1291(4) Kattinokkula Murali Krishna versus Veeramalla Koteswara Rao & Ors., AIR2010SC24In Jagdish (supra).learned Single Judge of this Court while considering the provisions of the Act and Rules of 1994 summarised the proposition of law on question of inspection and recount of votes in election matters thus:- “(i) In order to maintain a certain amount of stability in the election process and to check opening of flood gates of recounts and having regard to the insistence upon secrecy of the votes, which is sacrosant, inspection and recount of votes should not be allowed as a matter of course.
(ii) For setting aside an election and to grant inspection and recount of votes the petition should contain an adequate statement of the material facts on which the election petitioner relies upon in support of his case and those material facts should be proved by cogent and reliable evidence to the satisfaction of the Election Tribunal.
In other words, inspection of ballot papers cannot be and should not be granted to support vague pleas or to fish out evidence in support of such pleas.
7 (iii) The relevant election rules contain provision to apply in writing to the returning officer for recount of votes either wholly or in part, stating grounds on which such demand is made.
Though, at that stage, the returning officer should be liberal as election process still continues and if there is any counting error, it may be rectified before the election process was complete.
However, this rule cannot apply to the Courts while dealing with an election petition, because, if recount is ordered while deciding election petition, then the electoral process has to be restarted afresh.
The fact of not raising objection or making a demand for recount at the time of counting of votes can be taken a strong circumstance to deny a recount of votes in an election petition.
(iv) A narrow margin of difference of votes secured by the contesting candidates, though undoubtedly, is an important factor to be considered, but it would not be itself justify to allow inspection and recount by the Court.
(v) The law relating to inspection and recount of votes in election matters for Lok Sabha and State Legislative Assembly is equally applicable in the case challenging election of a Sarpanch and no distinction can be drawn in applicability of the rigor of the law.”
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In Smt.Madhu (supra).the Division Bench of this Court has held that for recounting of votes, there must be request in writing to the Returning Officer and if no such written request is there, it is not permissible to order for recounting of votes.
The Court held,- “(27).Thus, for recounting of votes there must be request in writing to the Returning Officer.
In the instant case, no such request in writing was made by the election petitioner before the Returning Officer when the election process was still continuing and as such the election petitioner cannot be allowed to make a demand for recount as it would amount to re-start the electoral process.
Indisputably, in the instant case, the election petitioner has not made any request in writing to the Returning Officer for recounting of votes while the election process was continuing, as envisaged under rule 49(6) of the Rules, 1994.
So also, the election petitioner does not contain a concised statement of material fact, on which election petitioner relies, as envisaged under rule 82 of the Rules of the 1994.
Rule 82 of the Rules, 1994 is analogous to Section 83(1)(a) of the R.P.Act, 1951.”
.
In Mahendra Pal (supra).the Supreme Court has held that if no objection is taken during couRs.of counting, then in absence of any evidence showing improper reception, refusal or rejection of any vote, recounting of votes cannot be ordered merely on the ground of discrepancy in the number of votes found and number of ballot papers issued.
8 In Kattinokkula Murali Krishna (supra).the Supreme Court while considering Section 100 of Representation of People Act, deprecated the practice of order for inspection and recount of ballot papers in want of strong prima facie case to suspect illegality in counting of votes.
The Court held,- 11.
Before examining the merits of the issues raised on behalf of the parties, it would be appropriate to bear in mind the salutary principle laid down in the Election Law that since an order for inspection and re-count of the ballot papers affects the secrecy of ballot, such an order cannot be made as a matter of course.
Undoubtedly, in the entire election process, the secrecy of ballot is sacrosanct and inviolable except where strong prima facie circumstances to suspect the purity, propriety and legality in the counting of votes are made out.
The importance of maintenance of secrecy of ballots and the circumstances under which that secrecy can be breached, has been considered by this Court in several cases.
It would be trite to state that before an Election Tribunal can permit scrutiny of ballot papers and order re- count, two basic requirements viz.
(i) the election petition seeking re-count of the ballot papers must contain an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded, and (ii) on the basis of evidence adduced in support of the allegations, the Tribunal must be, prima facie, satisfied that in order to decide the dispute and to do complete and effectual justice between the parties, making of such an order is imperatively necessary, are satisfied.
Broadly stated, material facts are primary or basic facts which have to be pleaded by the election petitioner to prove his cause of action and by the defendant to prove his defence.
But, as to what could be said to be material facts would depend upon the facts of each case and no rule of universal application can be laid down.
12.
In Suresh Prasad Yadav v.
Jai Prakash Mishra & Ors., (AIR1975SC376 (Para5) summarising the principles laid down by this Court from time to time in granting prayer for inspection of ballot papers and/or re-counting, a three-Judge Bench of this Court indicated the circumstances in which such a prayer could be considered.
Speaking for the Bench, Sarkaria, J.
observed as follows: (SCC pages 824-825) "...this Court has repeatedly said, that an order for inspection and recount of the ballot papers cannot be made as a matter of the course.
The reason is two- fold.
Firstly such an order affects the secrecy of the ballot which under the law is not to be lightly disturbed.
Secondly, the Rules provide an elaborate procedure for counting of ballot papeRs.This procedure contains so many statutory checks and effective safeguards against mistakes and fraud in counting, that it can be called almost trickery foolproof.
Although no hard and fast rule can be laid down, yet the broad guidelines, as 9 discernible from the decisions of this Court, may be indicated thus: The Court would be justified in ordering a recount of the ballot papers only where: (1) the election-petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded; (2) on the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and (3) the court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties."
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Having viewed the matter in the light of the principles enunciated above, we are constrained to hold that the Election Tribunal as also the High Court lost sight of the parameters to be applied while considering the petition seeking re-counting of votes.
It is manifest from the afore- extracted paragraph 4 of the election petition, containing the grounds of challenge, the allegations regarding irregularity or illegality in the counting of votes were not only vague, even the basic material facts as could have made the Election Tribunal record a prima facie satisfaction that re-count of ballots was necessary, were missing in the petition.
It is pertinent to note that upon consideration of the evidence adduced by the parties, the Election Tribunal had itself observed that the election petitioner had failed to state any material facts regarding the failure of the Election Officer to mention reasons for rejection of votes and further there was no specific allegation as to on which table the votes polled in favour of the election petitioner were mixed with the votes polled in favour of the appellant; and on which table the votes polled in his favour were rejected as invalid.
Precisely for this reason, and in our view rightly, the Election Tribunal had declined to take into consideration the evidence adduced by the election petitioner on the point.
It is a settled principle of law that evidence beyond the pleadings can neither be permitted to be adduced nor such evidence can be taken into consideration.
Moreover, even the two material issues, viz.
as to whether the counting of votes by the Election Officer was in accordance with the rules and regulations as also whether the votes polled in favour of the election petitioner were rejected as invalid or there was improper mixing of the votes have been found in favour of the appellant.
It is evident from the observations of the Election Tribunal, extracted in Para 7 above, that the sole factor which had weighed with it to order re-count was that no prejudice will be caused to the appellant if the ballot papers are re-counted.
Similarly, the factor which weighed with the High Court to affirm the view of the Election Tribunal is that re-counting of votes will reinforce the transparency in the process of election, particularly when the margin of votes 10 was very narrow.
It needs to be emphasised that having regard to the consequences emanating from the direction of re-counting, which may even breach the secrecy of ballot, the doctrine of prejudice is an irrelevant factor for ordering re-count.
Similarly, a narrow margin of votes between the returned candidate and the election petitioner does not per se give rise to a presumption that there had been an irregularity or illegality in the counting of votes.
In the fiRs.instance, material facts in this behalf have to be stated clearly in the election petition and then proved by cogent evidence.
Undoubtedly, the onus to prove the allegation of irregularity, impropriety or illegality in the election process on the part of the Election Officer is on the election petitioner and not on the Election Officer, as held by the authorities below.
In the present case, both the forums below have found that material facts were lacking in the election petition.
Having held so, in our view, the election petition should have been dismissed on this short ground alone.
In that view of the matter, the observation of the Election Tribunal, as affirmed by the High Court, that the Election Officer had failed to say anything regarding corrections and over-writings in Form 26, are neither factually nor legally sound.”
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Per contra, learned counsel for the forth respondent – election petitioner Mr.R.S.Choudhary while stoutly defending the impugned judgment has urged that in the backdrop of facts and circumstances of the instant case, no interference with the impugned judgment is warranted.
To substantiate his arguments, learned counsel has placed reliance on following legal precedents:- (1) Sohan Lal versus Babu Gandhi & Ors., 2003 DNJ (SC) 232 (2) Sadhu Singh versus Darshan Singh & Anr., (2006) 6 SCC255(3) Jayanta Samal versus Kulamandi Behera & Anr., (2004) 13 SCC552(4) Gursewak Singh versus Avtar Singh & Ors., (2006) 4 SCC542In Sohan Lal (supra).the Supreme Court, while considering Section 122 of the M.P.Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993, has held that a Returning Officer has no power to either direct recount of votes or to change the result after declaration of result and in such a situation, only remedy available to the aggrieved party is to file election petition.
This judgment as referred by the election petitioner is factually distinguishable inasmuch as 11 there is nothing on record to show that recounting of votes was ordered by the Returning Officer after declaration of result.
Moreover, even finding on issue Nos.1 and 2 nowhere suggests that after declaration of result, the Returning Officer has resorted to recounting of votes.
In Sadhu Singh (supra).the Supreme Court has laid down relevant factors for directing recounting of votes as under:- “i) prima facie case must be established; ii) material facts must be pleaded stating irregularities in counting of votes; iii) a roving and fishing inquiry shall not be directed by way of an order for recounting of votes; iv) an objection to the said effect should be raised; and v) secrecy of ballot papers should be maintained.”
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The ratio decidendi of this judgment cannot help the cause of election petitioner and on the contrary, if the general principles governing recounting of votes as envisaged by the Supreme Court are pressed into service, then the impugned judgment cannot be sustained.
In Jayanta Samal (supra).the Supreme Court, while examining the limited jurisdiction under Article 227 of the Constitution, has held that if the order passed by the Election Tribunal is not very elaborate but it does reflect the application of mind by it to the pleadings and evidence available on record with a conclusion that examination of ballot papers and their recount is made out, the same is not liable to be interfered with by the revisional court.
The proposition of law is acceptable without any demur but in the backdrop of facts and circumstances of the case, in the considered opinion of this Court, the learned Election Tribunal has not applied its mind to the pleadings and evidence available on record and, therefore, interference even by exercising powers under Article 227 of the 12 Constitution with circumspection, the judgment cannot be sustained.
In Gursewak Singh (supra).the Supreme Court, while considering the order passed by the High Court for recounting of votes which was declined by the Election Tribunal, has remanded the matter back for considering the matter afresh by reiterating the principles governing the province of examination of ballot papers and their recounting.
As such, this judgment too cannot render any assistance to the election petitioner.
Heard learned counsel for the parties and scanned the material available on record.
Election of Sarpanch, Gram Panchayat, Dhanop proved catastrophe for the forth respondent (election petitioner) is the genesis of this litigation.
The electoral arithmetic worked out to the advantage of the petitioner paving way to occupy Office of Sarpanch by a slender margin.
Petitioner’s election as Sarpanch of Gram Panchayat prompted the forth respondent, who lost the electoral battle by slender margin of 8 votes, to lay election petition mainly on the ground of improper counting of votes by the Returning Officer.
By the impugned judgment, the learned Election Tribunal vindicated the stand of forth respondent and ordered for recounting of votes is the contentious issue sought to be assailed by the petitioner in the instant writ petition.
The learned Election Tribunal by the impugned judgment has decided issue Nos.1 and 2 against the petitioner and in favour of forth respondent – election petitioner with a finding that there is element of suspicion in the counting of votes by the Returning Officer furnishing a plausible ground for recounting of votes.
While arriving at this conclusion, the learned Election Tribunal has noticed 13 contradictions in the deposition of the petitioner and the Returning Officer.
It is observed by the learned Election Tribunal that although the petitioner has candidly stated on oath that counting of votes was carried out twice but the Returning Officer on the other hand has completely repudiated the theory of counting of votes twice.
True it is that in civil matteRs.the standard of proof is not akin to criminal proceedings and the court may record an affirmative finding upon construction of the evidences on the principle of preponderance of probabilities but then, in election laws, irregularity and illegality in counting of votes is required to be scrutinised on sufficiency of material and not on mere suspicion.
Election of a public representative on his securing majority of votes is the foundation of democracy and, therefore, a fair and transparent method of election which includes counting of votes is the essence of democratic norMs.The election of a people’s representative by secret ballot pre-supposes that this sacrosanct object is not to be sacrificed on mere suspicion.
Considering all these aspects, the finding of learned Election Tribunal on issue Nos.1 and 2 requires judicial scrutiny with birds eye-view.
The primary requirement in this behalf is to examine the averments made in the election petition and the evidence tendered in this behalf.
If the averments contained in the election petition are harmoniously construed, then it would ipso facto reveal that allegations about illegality or irregularity in counting of votes by the Returning Officer are absolutely vague, cryptic and unspecific.
The allegations are per se edificed on mere conjectures and surmises.
Although the forth respondent - election petitioner has castigated the Returning Officer for counting the votes in an arbitrary and 14 fanciful manner but these allegations are lacking sting to prima facie establish his partiality in counting of votes.
The respondent - election petitioner in the election petition has averred that he has objected to the illegality and irregularity in the counting process but the same was not paid any heed by the Returning Officer and other employees involved in the counting process and even his written complaint/objection was arbitrarily turned down by the Returning Officer.
The so-called written objection was not part of the record before the Election Tribunal.
However, while substantiating these averments of the election petition, the forth respondent projected an improved version that his written complaint/objection was torn out by the Returning Officer.
During cross-examination, the election petitioner has candidly admitted that he has not produced copy of torn out complaint/objection.
Thus, it is a clear case of an embellished version by the election petitioner pointing out illegality or irregularity in the counting process and his submission of written complaint/objection.
While recording its finding on issue Nos.1 and 2, the learned Election Tribunal has completely lost sight of this vital aspect inasmuch as there is no whisper in the impugned judgment in this behalf.
There is one more redeeming fact that at the time of counting of votes, the election petitioner was accompanied by his agent but neither the name of agent is disclosed in the election petition nor in the affidavit.
That apart, the agent accompanying the election petitioner at the time of counting has not been examined as a witness to corroborate/substantiate the allegations contained in the election petition.
There remains no quarrel that mere slender difference of votes between the returned candidate and the nearest rival cannot itself 15 furnish a ground for recounting of votes.
The irregularity and the illegality in the counting of votes is required to be substantiated by cogent and convincing evidence and not on the strength of hypothetical or hearsay evidence.
The finding on issue Nos.1 and 2 by the learned Election Tribunal is essentially based on contradictions in the statements of the petitioner and the Returning Officer.
As per the learned Election Tribunal, the petitioner has admitted that votes were counted twice but the Returning Officer on the other hand has asserted that counting of votes was carried out only once.
It is on the strength of this inconsistency, the learned Election Tribunal has concluded that statements of the Returning Officer are unreliable and unworthy of any credit.
I am afraid, this sort of finding is not based on sound reasonings inasmuch the learned Election Tribunal has not at all taken care to examine the reply of Returning Officer and his version during examination-in- chief.
If the reply submitted by the Returning Officer, his affidavit and his version during cross-examination are critically examined then it would ipso facto reveal that his stand is consistent throughout that votes were not counted twice in the election.
How and in what manner credibility of a witness can be impeached solely on the basis of version of other witness is a very vital question which has not been addressed by the learned Election Tribunal in the judgment.
Merely because, the petitioner has admitted counting of votes twice, it is rather difficult to fathom that statements of Returning Officer are false, unreliable and not inspiring confidence.
In totality, in the considered opinion of this Court, the finding of learned Election Tribunal to categorise the statements of Returning Officer false and unreliable is based on mere ipse dixit.
It is also 16 noteworthy that if the statements of the petitioner about counting of votes twice is properly scrutinised, then too, it clearly emerges out that on both the occasions, his affirmative version is that he has secured more votes than the election petitioner.
Therefore, according to the petitioner, recounting of votes was at the behest of the election petitioner, which the election petitioner himself has denied by saying that it was done at the instance of the petitioner.
Thus, the contradictions in the stand of the respondent - election petitioner and the petitioner may cast a shadow on their testimony but from any stretc.of imagination, this sort of contradiction in the version of contestants cannot put a question mark on the reliability of the evidence of the Returning Officer.
It goes without saying that in the entire pleadings, there is no personal allegation against the Returning Officer that he was inimical to the election petitioner or he was biased against him.
As a matter of fact, the contestants might have deposed an embellished version out of over-enthusiasm being beneficiary of the outcome of election but then on the strength of the same, it is not possible to infer that the Returning Officer has made a false statement and his testimony is unreliable.
Therefore, in totality, the finding of learned Election Tribunal on issue Nos.1 and 2 is perveRs.and is completely based on misreading and misconstruction of the evidence and the materials available on record.
The ratio decidendi in Kattinokkula Murali Krishna (supra) clearly clinches the issue in favour of the petitioner and upon examing the finding in relation to issue Nos.1 and 2, in my opinion, the said finding cannot be sustained.
The finding on these two issues is not satisfying the requirements insisted by the legal proposition 17 adumbrated in the aforesaid legal precedents and, therefore, this Court cannot shirk from its responsibility to keep strict administrative and judicial control on administration of justice within its territory.
The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute.
Although the power of superintendence under Article 227 of the Constitution is to be exercised with circumspection, but such power can be exercised by this Court to ensure that wheel of justice does not come to a halt and the foundation of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to this Court.
Though the impugned judgment has been examined on merits and the same is not sustainable but in the considered opinion of this Court, the finding of the learned Election Tribunal on issue No.5 is also perverse.
Admittedly, the respondent - election petitioner at the threshold laid election petition before the District Judge, Bhilwara but then, the same was transferred to the Additional District Judge, Shahpura District Bhilwara and the same has acted as Election Tribunal.
On the pleadings of the petitioner, questioning the jurisdiction of the Additional District Judge, Shahpura to act as Election Tribunal, the learned Election Tribunal has not examined the matter in the light of the legal provisions and on the contrary has decided the same in an absolutely casual and cavalier manner.
Section 43 of the Act under the caption “Determination of dispute as to elections”.
reads as under:- “43.
Determination of dispute as to elections.- (1) An election under this Act or the rules made 18 thereunder may be called in question by any candidate at such election by presenting in the prescribed manner to the District Judge having jurisdiction, a petition in this behalf on the prescribed grounds and within the prescribed period: Provided that an election petition presented as aforesaid may, for the reasons to be recorded in writing, be transferred by the District Judge for hearing and disposal to a Civil Judge or Additional Civil Judge (Senior Division) subordinate to him.
(2) A petition presented under sub-section (1) shall be heard and disposed of in the prescribed manner and the decision of the Judge thereon shall be final.”
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Thus, the power of transfer conferred on the District Judge is not unfettered and it is circumscribed by making it clear that such transfers can be made to a Civil Judge or Additional Civil Judge (Senior Division) subordinate to him.
In this view of the matter, the Legislature has not intended that power of transfer can be exercised by the District Judge to transfer an election petition to any court subordinate to it other than Civil Judge or Additional Civil Judge (Senior Division).The very fact that Legislature has specified the court to which the election petition can be transferred pre-supposes that transfer of election petition to any other court is not intended by the Legislature.
My this view is fully fortified by a judgment of co-ordinate Bench in the case of Smt.Indira versus Smt.Prabha, 1998(1) WLC (Raj.) 81.
In this verdict, after discussing the provisions of Section 43 of the Act and Rule 80 of the Rules of 1994 threadbare, the Court held,- “It is thus evident that District Judge having jurisdiction to hear the election petition under Rule 80 of the Rajasthan Panchayati Raj (Election) Rules 1994 is an ‘authority’ according to section 117(b) of the Rajasthan Panchayati Raj Act 1994.
The decision of this ‘authority’ cannot be called in question by way of appeal.
Provisions contained in Code of Civil Procedure in respect of civil regular fiRs.appeal or misc.
appeal, have been excluded and this 19 is nothing in the ‘Rules 1994’ or ‘Act 1994’ to indicate that the Judge at the time of hearing the election petition functions as an ordinary court of civil jurisdiction, subordinate to the High Court.
The term ‘court’ used in various headings of the Rules 1994 is meant only to show that while hearing the election petition the Judge functions as a ‘judicial tribunal’ and that it is only in that sense that the word seems to have been used.
The Judge is not made identical with the civil court, otherwise it would have the same powers and privileged as a civil court powers to transfer cases provided to the District Judge under section 24 of the Code of Civil Procedure, has been curtailed and according to proviso appended to sub- section (1) of section 43 of the Act 1994 the District Judge can transfer election petition to only Civil Judge or Additional Civil Judge (Senior Division) subordinate to him.
Election petition cannot be transferred to the Additional District Judge, who is subordinate to the District Judge for the purposes of transfer of cases under section 24 CPC.
It is therefore apparent that intention of the Legislature in enacting above noted provisions in the Act 1994 and Rules 1994 was to create ‘Election Tribunal’ and not the ‘civil court’.
Thus the Judge acting under Rule 80 of the Rajasthan Panchayati Raj Election Rules 1994 is a persona designate and his action in dealing with the election petition cannot be revised by the High Court under Section 115 of the Code of Civil Procedure.
Definition of ‘Persona designata’ as laid down in Central Talkies case (supra) is not applicable to the ‘authority’ appointed to her the election petition under the Act 1994 and the Rules 1994.
In Narain Dutt versus Ibrahim (supra) this court did not properly construe the provisions of the Act 1994 as well as Rules 1994 and the case of Moti Ram versus Mali Ram (supra) was distinguished overlooking the decision of Division bench of this court in Keshav Dev V/s.
Radhey Shyam (supra).Therefore Bench of this court in Keshav Dev versus Radhey Shyam (supra).Therefore, I am unable to follow the views expressed in Narain Dutt versus Ibrahim (supra).”
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The decision in Smt.Indira (supra) is further followed by learned Single Judge of this Court in Smt.Ganga Devi versus District Judge, Bharatpur, 2006 WLC (Raj.) (UC) 287.
The legal position is no more res integra that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all and all other modes of performance are necessarily forbidden.
This sound legal proposition is founded on maxim “Expressio unius est exclusio 20 alterius...”
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based on the assumption of legislative omniscience, because it would make sense only if all omissions in the legislative drafting were deliberate.
Therefore, as intended by the Legislature also the power of transferring election petition ought to have been exercised by the District Judge in the manner prescribed by the statute.
While deciding issue No.5, the learned Election Tribunal has completely eschewed the legal provision and the trite law and consequently the finding of learned Election Tribunal on issue No.5 is per se vulnerable and cannot be sustained.
As mandated by law, it ought not to have acted as Election Tribunal in the matter and, therefore, on this count also, the impugned judgment cannot be sustained.
The upshot of above discussion is that instant writ petition is allowed, the impugned judgment dated 17.11.2015 (Annex.6) passed by Election Tribunal is quashed and set aside and the election petition (Annex.1) filed by the forth respondent is hereby rejected.
(P.K.LOHRA),J.
MK