In the absence of an express provision or a necessary implication in the relevant legislation or rules, a person whose name is included in the voters list of more than one ward in a Village Panchayat election is not prohibited from voting in more than one ward, and their vote cannot be excluded from both wards.

Headnote:
VILLAGE PANCHAYAT ELECTIONS - VOTING IN MULTIPLE WARDS - VALIDITY - BOMBAY VILLAGE PANCHAYATS ACT, 1958 - BOMBAY VILLAGE PANCHAYATS ELECTION RULES, 1959 - REPRESENTATION OF THE PEOPLE ACT, 1951 - MAHARASHTRA MUNICIPALITIES ACT, 1965 - INTERPRETATION.
Fact of the Case:

In a Village Panchayat election, a voter, Bainabai Kanekar, cast her vote in two different wards, Ward No. 1 and Ward No. 4. The petitioner and the respondent No. 1 were tied in the election for Ward No. 4, each receiving 87 votes. The Returning Officer conducted a lottery to break the tie, and the petitioner was declared elected. The respondent No. 1 challenged the election, arguing that Bainabai's vote in Ward No. 4 should be excluded because she had already voted in Ward No. 1, and that this would give him a majority of votes. The Civil Judge agreed and set aside the petitioner's election, declaring the respondent No. 1 as the elected candidate.
Finding of the Court:

The High Court found that there was no express provision in the Bombay Village Panchayats Act or the Bombay Village Panchayats Election Rules prohibiting a person from voting in more than one ward if their name was included in the voters list of those wards. The Court also found that such a prohibition could not be implied from the rules or sections of the Act. Therefore, the Court held that Bainabai's vote in Ward No. 4 could not have been excluded by the Civil Judge on scrutiny.
Issues: 1. Whether a person whose name is included in the voters list of more than one ward can vote in more than one ward in a Village Panchayat election? 2. Whether the vote of a person who has voted in more than one ward can be excluded from both wards?
Ratio Decidendi: 1. The Court held that there is no express provision in the Bombay Village Panchayats Act or the Bombay Village Panchayats Election Rules prohibiting a person from voting in more than one ward if their name is included in the voters list of those wards. 2. The Court also found that such a prohibition could not be implied from the rules or sections of the Act. 3. Therefore, the Court held that Bainabai's vote in Ward No. 4 could not have been excluded by the Civil Judge on scrutiny.
Final Decision: The High Court allowed the petition, quashed the order of the Civil Judge, and maintained the result declared by the Returning Officer, upholding the petitioner's election.

JUDGMENT

PADHYE J.-Village Jaola Shahapur in taluq Aohalpur, district Amravati has been divided into four wards for the purposes of Village Panchayat. Ward No.4 with which we are concerned in this petition is a double-member constituency. The elections to the Village Panchayat in this village were held on 11.4.1967. The petitioner and the respondents Nos. 1 to 3 were the four candidates for election to the Village Panchayat from Ward No.4. Two members were to be elected from this constituency. As a result of the counting on 11th April 1967 it was found that the respondent No.2 Ganeshrao Malluji secured 92 votes, the petitioner and the respondent No. 1 secured 87 votes each and the respondent No.3 Hiraman secured 72 votes. Being a double-member constituency, the respondent No.2 Ganeshrao who secured largest number of votes was first declared elected. So as to secure the second seat, there was a tie between the petitioner and the respondent No.1, each of them having secured 87 votes. Since the petitioner and the respondent No. 1 secured equal votes, the Returning Officer acted under rule 34, sub-rule (3) of the Bombay Village Panchayats Rules 1959 and lots were drawn as a result of which the petitioner was declared elected. The respondent No.1, therefore, filed an election petition under section 15 of the Bombay Village Panchayats Act, 1958.

2. It was alleged on behalf of the respondent No.1 Panjabrao that a voter by name Bainabai Kanekar voted in both the Wards Nos. 1 and 4 and therefore, both of her votes were to be declared void and since in Ward No.4 Bainabai had voted for the present petitioner, that vote should be excluded from the number of votes he obtained as a result of which the respondent No.1 would get 87 votes, that ii, one vote more than the votes polled by the petitioner. The votes from Wards Nos. 1 and 4 were, therefore, scrutinised by the Second Civil Judge, Achalpur before whom the election petition was filed and on scrutiny he found that the said Bainabai had voted both in Ward No. 1 as well as in Ward No.4. Bainabais name was included in the voters list of Ward No.1 at Serial No. 155 and in the voters list of Ward No.4 at serial No. 13. The learned Civil Judge found that her name appeared in the voters lists of Wards Nos. 1 and 4, that she was issued ballot papers in both these wards and that she voted in both these wards. It was further found by him that in Ward No.4 she had cast the vote in favour of the present petitioner and, therefore, held that the petitioners votes should be counted as 86 instead of 87 after excluding the vote of Bainabai and the respondent No. ls votes would be 87 as already declared. On these findings the learned Civil Judge set aside the election of the present petitioner and declared the respondent No.1 Panjabrao as elected to the Village Panchayat from Ward No.4. This decision is challenged by the present petitioner.

3. In deciding this question, the learned Civil Judge placed reliance on the provisions of section 62 of the Representation of the People Act, 1951, and particularly on clause (3) which states that:

"No person shall vote at a general election in more than one constituency of the same class, and if a person votes in more than one such constituency, his votes in all such constituencies shall be void."

He also relied upon the provisions of section 13 of the Bombay Village Panchayats Act read with the provisions in the Representation of the People Act, 1951, fo1 the purposes of holding that Bainabai was not qualified to vote in both the wards and she ought to have voted in one ward only.

4. In this petition, the present petitioner alleges that it has not been established that Smt. Bainabai Kanekar in both these wards was the same per. Ion and that one person Smt. Bainabai has voted both in Ward No.1 as well as in Ward No.4. It is also contended that the learned Civil Judge has not given any reasons whatsoever for coming to this conclusion that Smt. Bainabai Kanekar, whos

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